The M
e t a project brings together music makers and workers across the British Isles!
COPYRIGHT
AND ROYALTIES
FOR MUSICIANS
by Dave Cross
How songs and music are Copyrighted is the same process that allows
composers and songwriters to earn money from their work.
This web page should help explain some of the background
to this complex mix of law, of accepted practices and the
odd exceptional case that gives wealthy Record Companies
or performers coverage in the music press.
Copyright
At first, it
all seems very simple - The
Copyright, Designs & Patents Act of 1988 gives the creator of an "original
literary, dramatic, artistic or musical work" the
automatic rights to that work, without any formal
registration of their work. These rights are often called
"intellectual property" rights, and like other
kinds of property, they can be sold, licensed or given
away - or they can be hidden away where no-one else can
get them. This automatic copyright begins at the moment
the work is recorded in some form (written down or in a
sound recording). Copyright to "performance
art" begins when it is recorded on video or is
described in writing. So there's no Registration forms,
no fees, nothing more to do than writing down your song.
Sounds simple enough, doesn't it?
The complications arise in several areas:-
- control of your Rights beyond the UK and
Europe;
- being able to prove
that your copyright material is yours in case of
plagiarism;
- avoiding the trap of confusing a recording
of your music made to prove your work (the songwriter
& musicians' intellectual property) with the
recording of a piece of music by a creative sound
engineer (the sound recordist's intellectual property);
- the rights to use a particular Name
for your band;
- the mystery of what happens to the rights
to a bands' material after the band have split up or
changed line-up, and
- just what is it that you are
copyrighting?
It will
always be worth taking advice from a specialist lawyer in
either the Music Industry or in Intellectual Property. Generator
has the names of a few specialists, and their advice will
depend on the answers to several questions about the
particular activities a composer or performer is likely
to be getting involved in, what sort of money might be
involved in these activities, what your role is in the
music project and how serious the risk of copying might
be. There is a big difference between the advice given to
someone who wants to sell or licence their automatic
rights to people who'll broadcast, copy and perform it as
much as possible to maximise the fees they receive and
someone who wants to keep all rights to their work to
themselves. Many songwriters are, reasonably, proud of
their work, and would want to protect it from being
copied, even if it is called flattery. However, we should
all be realistic. The chance that someone will want to
steal our ideas is not so very great, and unless the
material does become widely distributed and broadcast, in
which case our rights should be protected by contracts
with a publisher and the Collection Societies (see below),
then the need to protect our "intellectual
property" may
not justify any great expense. Some of the precautions in
this article can be taken without employing professional
help, and should cover the most basic needs of most
songwriters and composers.
To help a lawyer advise on your rights to your music, you
will ideally have kept as much written detail about your
work as possible - when it was originally created and
written down, who has been involved in creating it,
precisely who participated in the writing of a song,
maybe even stating what percentage of the work was done
by each participant and all the agreements you've made,
verbally or in writing. You should have a list of where
copies of your work have been sent and when, and what was
written on those copies. You should also have carefully
documented notes of the work itself, the lyrics, the
music, perhaps the structure of the song, where it was
recorded, when and by whom, who was present at the
recording, where the original copies of that recording
are kept and what did the agreement with a studio say
about ownership of the tapes.
The
Law
But to explain the general principles, lets just go back
to the UK Copyright, Designs & Patents Act
1998 and what it automatically offers you as the creator
of an original work. (European & US
Law are briefly
mentioned below). It
restricts five activities exclusively to you, the creator
of the work:-
 Copying the work
 Issuing copies of the work to the
public
 Performing the work in public
 Broadcasting the work (or
including it in a cable programme service)
 Making an adaptation of the work
(including a translation of the work)
These are
"economic
rights" which
automatically belong to the original creator of the work,
and only to the creator, but the Act also gives the owner
of these rights the authority to permit others to do any
of these five restricted activities. If a creative person
does sell, give, licence or otherwise assign one or more
of their rights, then the right completely passes to that
other person. But the creator also has "moral rights", and
these will remain with the creator, even if they have
transferred all five of their "economic rights"
to others (unless they also agree to waive their moral
rights!). By assigning a right to someone, you are giving
them the benefits of the right, usually for a specific
length of time, but you keep the actual legal rights
yourself. In fact a creative person will usually want to
make money from selling, assigning or licensing these
rights to someone else. For example, a songwriter may
specifically authorise a music publisher to, well, what
do you think, to publish it, or to a radio producer to
broadcast a performance, whether it is for a fee or not.
Collecting those fees are another matter, and that's
where the Collection Societies (PRS, MCPS
etc.) come in to the picture, they specifically exist to
collect the fees due from these rights once you've
authorised them to do so. But before you get too far,
you're likely to come up against the important legal
requirement for proof of ownership. It will be easier for
the Collection Societies to show ownership, because you
will have given them written authorisation, but how can
you, the original creator of a song or tune prove that
the work is yours if challenged by someone else or if you
wish to prevent someone from using your music as if it
was their own?
As for the
"moral
rights" which
would remain yours, they allow the original author to
continue to claim that they were the author, and to be
credited as such. These moral rights also allow you to
object to others abusing your work, or instances of
others falsely claiming a work was yours which in fact
was created by someone else. Some Contracts with a
publisher or a record company may ask you waive even
those moral rights, but your lawyer would then argue that
the contract should have clauses giving you the important
parts of these rights back, the right to be credited and
to object to others abusing your lyrics, for example. If
a publisher or record company thinks it can earn from
your material, then it should also be willing to defend
the rights to it for a specified period of time, even if
its first concern is to defend its own ability to make a
profit out of the asset you assign to it.
When
negotiating a contract, particularly when you are at an
early stage in your career, you should always use the
services of a professional who will not only know what
the issues are to negotiate, but also have some
experience of how far to push the other negotiator
without losing the deal. If you attempt to hold on to
your economic and moral rights, you may find that the
other party looses interest in what you have to offer.
You should discuss with your lawyer just how far you are
willing to go to protect your rights and how much you are
prepared to give.
All of the above refers to your creative work - but just
what is that work? Is it a tune, is it lyrics,
is it a recording? Each of these three are separate
copyright works, and someone owns that copyright - you,
if you are the creator, or you and others, if you are in
a band who wrote the music and songs collectively. If the
song was, say, a collaboration of two of you (40% by you
and 60% by one of the other band members), and the music
was a collaboration of three of you (50%, 25% and 25%)
with a fourth member contributing none of the creative
effort, then these proportions are what you should agree
in writing amongst yourselves and, if and when you
register with the Collection
Societies, these are
the proportions of the royalties each of you will receive
(if there are to be any royalties, that is). There is
probably nothing more important in copyright disputes as
knowing just who owns how much of each aspect of the work
- hopefully, if you'd written everything down very
clearly when you wrote and recorded the songs, then you
won't have any of these disagreements, later. Will you?
Nothing in
this world lasts forever, and that includes your
Copyright. The
Act gives you
those automatic rights for 70 years after your death, and
if you don't think that's going to be long enough to earn
your living out of your efforts, then our suggestion to
you might be cryogenic deep-freezing rather than legal
advice! In the case of collaboratively created work, the
70 years doesn't start until the last of the
collaborators dies.
On the other side of this time limit though, is the
knowledge that other people's works written in the 1920s
will now be out of copyright, and unless there's been a
more recent publication of that work which will have its
own 70 year limit, then you should find it easier to use
that work without paying a fee.
But check first ! Somebody might have the rights to a
more recent publication.
Prove
it!
The law is
very clear about the requirements for "admissible
evidence", and
there is no point in trying to claim that a work is yours
unless you can provide evidence that a Court will accept.
There are five well established types of evidence which
would show that a musical idea was first yours, and you
should choose the one that is most suitable for your work
and your realistic expectation of why you might need to
provide evidence.
The first option is a reliable witness
with documentary evidence. If you can have a written copy
of the lyrics and music signed and dated on each page by
a Solicitor, Bank Manager or other Public Service
professional then they can be asked to appear in Court
and testify that their signature and date are correct and
that they know you and that they believe you created the
original work which is on the documents. Most
professionals will charge a small Fee for such a
signature, and a larger Fee for a Court appearance,
though the Court should accept a written statement from
them if there's no dispute over the facts in the
statement. If you had written lyrics and musical
notation, then the testimony of your witness is vital,
but if it is your tune that someone has copied, and you
hadn't written the musical notation, then your witness
might be questioned about their abilities in recognising
music!
The second
option is to submit a copy of your work to Stationers
Hall in London
which will keep a record of your work and the date at
which it was registered. The initial charge is around
£47, though members of the Musicians Union benefit from
a discounted rate (contact
information below).
Registrations with Stationers Hall have to be renewed
every seven years, and because of the on-going costs,
this method is often used only for major works. Evidence
from the Stationers Hall will be accepted by the Court,
as long as what you sent them persuades the Court that
its adequately similar to the work which you claim is the
copy.
Third,
there's the famous "self
addressed envelope"
method. You can send a copy of your work (a written
manuscript or tape with details of who wrote the
words/music, where and when) by Special Delivery
(formerly Registered Mail) to yourself. When
sending the package, you should sign the envelope across
the seal, and insist that the Post Office clerk stamps
their date stamp clearly across the seal as well as on
the receipt. When the envelope arrives, keep it and the
receipt somewhere safe, unopened, with a note reminding
you of what is in the envelope. For added security your
Bank will keep a small box of your personal valuables in
their safe for about £20 a year - you could keep quite a
catalogue of music and lyrics safe this way. Courts will
accept the Post Office's stamp as adequate proof of the
date, which might then show that someone else using your
music or words did so after you, and therefore has
"stolen" your intellectual property. This is
such a simple and popular method of providing evidence
that it is probably worth doing for all your work even if
you also choose one of the other methods.
Fourth,
you can ask a Solicitor to help you make a Statutory
Declaration which is
your written statement that the work was originally
created by you on a particular date etc. This will be
accepted as evidence of the date of your claim, if you
need to show that you had the idea first, but it might
not help to convince the Court that the copy is actually
based on your original work, and could lead to an
argument about whether two pieces of music are similar or
not.
The last
option which is particularly popular with inventors of
ideas that they feel sure will be ripped off, is,
ironically, to keep it safe by publishing it! There is a
particularly obscure magazine printed in the North West
USA which publishes original ideas, but which is read by
so few people that the idea doesn't catch on. In fact
inventors, who Patent their ideas rather than copyright
them, will know that publication is a requirement of the
Patenting system. In the event that the originality of a
creator's ideas or words have to be argued in Court, then
a copy of the magazine is produced, which will clearly
show the date of original publication and name of its
creator.
If someone
does copy your work, then evidence of this kind should
prove that the idea was yours first, but you will still
have another hurdle to cross. You will still have the
responsibility of proving that the other person had the
opportunity to hear (or read) your work. If the person
claiming that their work was copied can't agree how the
other person could have had access to the work, then
they'll have trouble persuading anyone that their work
was copied. There are only a few musical notes to choose
from, so it is reasonable to assume that quite a few
tunes written completely independently will have
something in common. Suppose your only copy of a song was
hidden away, perhaps in that self-addressed sealed Jiffy
bag. Its not likely, then, that someone else will have
had the chance to hear it, so your claim that your
copyright was violated will fail. That is one reason why
some people like to publish their work as a means of
providing evidence - it makes it easy to show that the
plagiarist would at least have had the chance to copy
your work.
When disputes
are settled "out of Court", it is usually
because the party that coughs up has acknowledged that
the evidence against them is impressive, irrespective of
who really had the idea first, so never underestimate the
value of your evidence! On the other hand, if your
evidence is poor, or the other party in the case simply
doesn't believe you, then the hearing can become very
expensive, perhaps calling on the opinion of a specialist
musicologist who will analyse the music which you and the
other party have produced, and point out where the
similarities lie and which parts might have been copied.
Defending your rights may not be worth the expense of a
legal dispute, but it probably is worth accumulating
evidence as your creative career progresses. Your
solicitor will probably advise you that their role is to
minimise the chance of having to fight in the Courts by
having the right evidence from the outset, rather than to
help you once you've got into a dispute. Some disputes
over sampling without permission can be long and
expensive in Court time, and the outcome may not be
financially worth enough to cover your costs. Remember
that the Verve lost all their income from their
1998 song Bittersweet Symphony because they
hadn't permission to use a sample - permission that
probably would have been given, if only they'd asked!
Its one
thing being able to win a dispute in Court - its another
to make money from your creative ideas, and that is often
best left to people that make their own living out of
using those five "restrictions" in the 1988 Copyright
Act. If you
give a licence to a music publisher or record company to
try to maximise the income from your work for a period of
time, then you should expect them to want a detailed
written contract with you which enables them to fight any
legal battles over your rights (though they might not
bother if it isn't likely to be profitable). They will
expect you to make a declaration that your work is, in
fact, your own original work. They will also specify
which territories (ie which groups of countries) they
want to use your material in, and they may leave you with
the rights to some territories where you can still try to
make money from your work by other means.
Within Europe,
there is a Directive (Directive
93/98/EEC) passed by the European Commission which
standardises the rights of intellectual property across
the EU. These Directives have legal authority, but
surprisingly, one of the EU countries seems to have had a
problem in adopting the Directive. That's the UK.
Nevertheless, if you and your work are registered with
the collection societies, then your fees from
performances, from broadcasting, from record sales and
other authorised copying etc. will still be collected for
you, just remember to keep them informed of your changes
of address!
The law in
the USA is
different again - the relevant law there is the Copyright
Statute of 1976 and
now augmented by the Digital
Copyright Millennium Act
which tries to cover more digital issues. US Copyright
lasts for 50 years after the creator's death, not 70.
We'll not be going into that here, but we should never
ignore the risk of someone exploiting work in other
countries - there is actually a lot of illicit copying of
CDs in other parts of the world and it is often UK
musicians and their Record Companies who are the losers.
What
next?
Once you
have registered with the Performing Rights Society
(PRS) and/or the Mechanical Copyright Protection
Society (MCPS), they can collect your song's
royalties for you. (Contact
numbers are at the end). PRS will
require you to give them the rights to your work , in a
lifelong "deed of covenant", so that they can
do this for you. Both of these organisations also publish
very informative guidelines in booklets and on their web
sites which covers their services and some of the special
cases and exceptions to their scope. They work closely
with each other, sharing some of the same staff and
having a common administrative HQ, but it is important to
recognise their differences:-
PRS will collect royalties due from the performance or
broadcast of a published song, MCPS will collect
royalties from the use of a sound recording to make
copies, whether vinyl pressings, tape duplication or CDs.
These copies would incur royalties for you if they were
used for music in film and video, computer games,
karaoke, and countless others. As an example, suppose you
play your music in a radio studio, for broadcasting at a
later time - MCPS should be collecting your fee for the
copy made when you record the song, and PRS should
collect your fee when it s transmitted, including later
fees for any repeats of the broadcast. There will usually
be more royalties to be earnt from songwriting than
composing music, so the arrangement with PRS must be very
clear about who wrote the lyrics. If you are lucky enough
to have your music used in a film or TV programme, then
"synchronisation
rights" will
apply, allowing you to earn from the use of your music
during the making of the film or video. Yet more
royalties will be collected for you whenever the film or
video is shown or broadcast.
- Fact
file on PRS & MCPS
SPECIAL
CASES
 Internet
There
are complex issues relating to internet distribution of
your music on account of the international scope of the
net, and some changes are being proposed in some
countries. The difficulties are both legal and practical,
but the current position is that the normal copyright
rules of each country apply within each country,
separately. If someone on the other side of the world is
letting people hear your tunes without your approvals,
you can go and stop them in that country, under whatever
copyright laws they have - if you can find them.
There are alleged to be over 25,000 web-sites offering
music, often at excellent technical quality, which don't
pay a fee to the copyright owners. These include web
radio stations which often transmit entire albums. Even
UK stations which transmit simultaneously on-air and via
the web will be paying fees based on the size of their
agreed radio audience - which will not include the
potential global audience of their web listeners.
Just because the internet is so uncontrollable doesn't
mean that you have to have an uncontrollable agreement
with your local internet music service - your agreement
should be just as carefully thought out as you would do
for broadcasting and publishing in any other medium. Why
give away all your rights, even just all your digital
rights, to a site that can give you good exposure without
being sure that you'll be properly repaid if things do
take off for you? Two US sites have managed to
"break" a band into the mainstream from their
web-site and others hope to do the same. Obviously.
That's the big pay off they're waiting for. So if its
worth the gamble for the label, make sure its also going
to be similarly profitable for you. There'd be no point
in crying at the label afterwards saying "its
not fair"!
Internet distribution seems like a great idea to get
yourself exposure, but if it works, and you've become a
well-known name, can you still let people download copies
of your tunes for free, and if you can't stop it, where's
the money going to come from?
Sampling
Particular
arrangements apply to approvals to use samples of other
peoples' music. MCPS have a sample clearing department
which helps to identify the true copyright owner and to
request their permission. If you have followed the
article so far, you won't be surprised to learn that
there is a difference between asking the original
composer for the right to sample their music, and asking
a record company for permission to copy and use one of
their recordings. If you are sampling both, you need to
ask for two permissions. If you are also sampling
someone's lyrics, then that will be three permissions!
The permission to use lyrics will generally have to be
given by the publisher of the lyrics, whose name should
be found on the label of the CD or wherever else you
found the lyrics. Fortunately, many copyright owners
whose material you might want to sample are willing to
agree, occasionally without even making a charge! But
just think where Stardust would be if they
hadn't got permission to use that Chaka Khan
guitar sample on "Music Sounds Better with you"?
Theatres & Churches
Songs
recordings and music used for performances in theatres
and for other dramatic uses are subject to different
regulations and collection methods. Another particular
exclusion applies to music and lyrics used in places of
worship, though there are even exceptions to the
exception, and once again, specialist advice should be
sought before either trying to collect royalties from
works played in churches or before trying to play other
people's work without proper acknowledgements. There was
a recent case in which a church was made to pay for
material they had been using even though they understood
that they were exempt from paying royalties.
A "Concept" album
Now
what if you are lucky enough to be given a Contract for
writing a theme tune and related snatches of music or for
a "concept" album where a particular tune
appears several times in many forms? If you sell your
rights to these themes, could you then write something
similar, such as the next part of the series, and still
own the Copyright to the new work, or would you already
have sold the rights to the whole series? This can get
quite complicated, and you could find that you have
already assigned your right to a work that you haven't
even written yet if it "repeats or imitates the
'main design' of the earlier work". Generally, if
you sell or licence your copyright to a themed work, you
will only be able to keep the rights to a new work
similar to the series, if it doesn't imitate the earlier
work.
Review Copies
Although
it is often said that short extracts of copyright work
may be used without payment, usually allowing reviewers
to quote from a work when it first appears, this is
actually just a habit and is not strictly a legal
provision. Your permission for extracts for review should
still be sought, though you'll probably rather have the
free publicity, won't you? Most magazine or radio
reviewers won't want to pay you for the right to quote
from your work, they'll just find something else to
review. The phrase "fair use" is used in the U.S. Act to
allow certain uses which are exempt from the four
Copyright exclusions. These are very difficult to
generalise and different publshers have different
policies towards permissions to use extracts, but are
intended to cover criticism, comment, news reporting,
teaching, scholarship and research. The the scope of
these exceptions will depend on the nature of the work as
well as the use to which it is put and the mood of the
publisher (or so it seems!).
- see http://www.iaspm.net/rpm/CopyRi_1.html
for comments on the use of extracts.
Translations
Specific
inclusions in the legal protection of the 1988 UK Act is
that a translation of your words into another language
remains your work and your "intellectual
property". But if you do ask someone else to
translate it for you, and they translate it creatively,
such as trying to make new rhymes in the other language,
then they too will have a claim to ownership. They could
sell their rights to you in a simple written contract,
just as you can sell your rights to your work. Such a
contract will firstly state that the translation is an
original work by the translator, based on your original,
and that they sell those rights to you for an agreed fee.
Its
mine! No its not, its mine!
When you
make a recording of your music in a studio, you might
think you're creating evidence which proves that the work
is yours. But what about the rights of the person making
the recording? The ownership of the sound recording lies
with "the person who facilitates the
recording" whether it is on cassette, CD, hard
disk, video or film soundtrack. That person might be the
studio owner, a producer or manager who paid for the
studio time or it may be the sound engineer. A separate
agreement may have to be made with each of these people
before you have the rights to any of the five
"restrictions" of the Copyright,
Designs and Patents Act.
Usually, these people will give you a buy-out of
their rights where they sell those rights to their work
for an agreed fee, but you should not assume that they
will want to do that - some creative producers might
devise a "sound" or particular musical or
lyrical concept and expect to keep their rights to
receive a royalty from every future use of their
recording. This can be particularly true in recordings
made for film or TV where producers can make their living
from repeat broadcasts or screenings. In fact, the Union
representing many UK technicians, BECTU,
is just as active in recovering unpaid fees for its
technicians as the Musicians
Union is in
recovering fees for musicians, so you should always check
carefully just who has rights to what, and who is willing
to give, sell or licence their rights. It is always going
to be wiser to get a simple written statement of what
rights you are buying, and which you are not, when you
have a recording made.
Although the law is intended to help you earn money from
your creative work, it will also help others to collect
and keep any income they earn if they don't know of your
ownership. For this reason, you should always let people
know who and where you are, and what rights you are
claiming. The Courts will not normally make an award of
damages for "secondary
infringement"
(sometimes called "innocent
infringement")
which is where someone performed or copied your work (or
any of the five "restricted" acts) without
knowing that it was your intellectual property. A good
avoidance technique would be to write the international
copyright symbol on, say, all your demo cassettes, adding
your name, address and date, although admittedly most
musicians don't bother with this simple precaution.
Include the © copyright symbol (the letter C inside a
circle), followed by the year and your name. One day you
might find that the recording studio or engineer has put
their name on the label first! Note that the label must
make it clear what the copyright applies to - a copyright
symbol on a label applies to the label's words and/or
artwork, unless the wording makes it clear - something
like: copyright in the words and music on this recording
is owned by Winston the Dog © 1999. Of course
there's nothing wrong with copyrighting your artwork too!
A similar symbol, a P in a circle, indicates the date of publication
of a sound recording, and this could also be included for
completeness.
Now the copyright symbol doesn't give you any rights or
legal protection, but what it does do is inform others
that you have claimed ownership of the material, and that
should avoid the risk of a plagiarist being let off
because their offence is merely "secondary
infringement".
When you meet with someone who agrees to use your work,
or even if you agree it on the phone, there is always the
risk that they will have a different recollection of what
was said (funny how some people seem to remember the
version that suits them best). Follow up those informal
agreements with a letter explaining what you remember was
agreed in the meeting, including all the conditions,
timescales and the fees. If they disagree, then you will
still have the opportunity to re-negotiate before giving
them the benefit of your creativity. But if they simply
don't respond to your written account of the agreement,
then it can be assumed by an arbitrator that they were
aware of your version and by not disagreeing when you
offered them the chance, they let your letter become the
contract.
There's
another legal process which can be used to prevent
someone from using your work (or prevent them from using
your name) though it could also be used by someone else
to stop you. Its called an Injunction,
and it is something that you can get from the Court as a
last resort. You would probably be better off using the
experience of a lawyer but it is possible to get one
yourself. You can actually go to a Court, fill out an
application to see a Judge, pay a small fee, and explain
to the Judge that your property is being, or about to be
used by someone without your permission, and if you can
provide some solid evidence, you might walk away with an
Injunction. If you deliver that Injunction to the person
using your intellectual property, they must stop that use
immediately or expect to be summonsed to Court to explain
why they defied the Judge's order!
The Clerk to the Court can help you in filling
out the form, but the costs can be high if you claim that
the financial loss to yourself (the damages)
is high, and there do have to be damages or imminent
damages, otherwise you're not suffering any loss! If you
are awarded an Injunction ordering someone to stop using
your work, your name or whatever, but if they carry on
regardless, you may wish to bring them to Court to be
fined for disobeying the Court's order. Unfortunately,
the cost of bringing them to Court will be yours. This is
a technique for use in an emergency, and you might only
be postponing a bigger and more expensive legal dispute!
Got
a job?
Some Contracts
of Employment refer to
intellectual property - often to safeguard the company's
ideas from being exploited by employees and competitors,
but sometimes to maximise what the Company gets out of
its employees. At one extreme, there are Contracts which
demand that any ideas you have belong to the Company,
possibly even extending to ideas you have in your own
time (better not to be found tapping drum patterns on
your desk or writing lyrics on Company paper, then!). At
the other extreme, there are Contracts which recognise
the value of creative people, and allow any creative work
to remain yours, just as long as you credit the employer
if you publish your little gems. Another possibility is
that your Contract entitles your employer to share the
rights to work that you create in their time.
If you are employed, do check your Contract of
Employment to see if you have agreed to anything
which gives the rights to any of your five restricted
activities to your employer. If you create some work
"in the course of his/her employment",
copyright ownership automatically belongs to your
employer "unless there is agreement to the
contrary", so if there is nothing stated in
your Contract, then your ideas belong to your employer.
Fortunately, they would probably only claim that your
personal little creation was theirs if you were employed
to do something similar - for example, if you were
employed to write rhymes for greetings cards and you
wrote a rhyming Christmas song, it would be reasonable
for your employer to claim that your song is their
property. Certainly the Courts would take this view - the
work would have to be relevant to the business of the
employer if they were claiming the five copyrights for
your work.
Employers can and do enforce these clauses and could stop
your creative career at a stroke, but its unlikely that
an employer would be interested in a song that wasn't
likely to earn much money for them in the first place.
The self employed used to be considered in the same way
as full-time employees (so their work would be the
copyright property of the employer) but to help in cases
where a creative person is simply commissioned to write a
particular piece, and they remain self employed, then the
1988 Act allowed them to keep the copyright of their
work. This distinction was introduced to help artists and
musicians who generally work independantly of any
employer and need to be able to make their living from
all of their creative work - it is unlikely to help a
part-time office worker keep the rights to something they
created during the period of their employment.
A musician in a "residency"
at a venue or in a local authority's arts institution, or
employed as a music teacher or tutor may be seen as being
employed in the sense that work is created "in
the course of his/her employment", and so the
first owner of the copyright to that work is, therefore,
the employer. Musicians should consider proposing an
alteration to their contract before agreeing it, which
will give the musician ownership of all the work created
during such an agreement. Note that if you simply refuse
to sign a contract like that but go ahead with the work
and / or receive payments, then you'll find yourself in
the same position as someone in a contract with no "agreement
to the contrary", in other words, your employer
will own the rights to your work.
By
"employment", we mean full-time work, but many
musicians or songwriters who get work like this may be self-employed,
and so should keep the copyright of their work, even if
it is produced during work for an arts organisation,
school or college. Ideally, there should always be a
precise agreement in the Contract to make clear that you
are not an employee and you therefore there is not an
employer who can claim ownership of the copyright to your
work. If you are registered in the UK with the Inland
Revenue on their "Schedule D", (which
applies to most self-employed people, free-lance workers
and others who have more than two sources of regular
income), then you shouldn't have much trouble persuading
your employer that you are self-employed as a creative
person and that your rights to your creative work will
remain your own - provided you haven't already signed a
contract which gives your employer those rights!
Lets
split the profits fairly
What is
fair? Does the drummer receive as much from your musical
success as the singer songwriter? What happens when the
bass player leaves the band? And who said anything about
profits anyway?
If you're
ever offered a Recording Contract or a Publishing
Contract, these questions might, and might not, be
answered in the contract. This is an area where you
should ask your solicitor to, either, ensure that the
contract does spell out who is to receive what, or, to
draw up a separate document which clearly defines the
rights of the individual band members. If you don't, the
contract may not allow income to be distributed as you
might wish. It may even divert your income to fund the
next part of your band's project, a trick called cross-collateralisation which
often results in performers not seeing the income they
expect. In a seriously professional band, the band might
be incorporated as a Limited
Company with all
the separate legal rights that that involves, and the
band members could then be employees of that Company.
Becoming a Limited Company carries quite a few additional
responsibilities and costs, free leaflets available from
the Law Society are in the reception of most
Solicitor's offices and they will give you an outline.
But if you do form a Company, any Record Company
interested in you will probably insist that only the named individuals are in the
band. That would still leave you to write your own
agreement among yourselves, before you start receiving
any royalties, to explain what you want to happen if
various members leave, or if the whole band splits up.
Just think of it as agreeing all the details of your
divorce settlement before getting married!
What's
in a Name?
Which is
going to raise more money at the box office: the sales of
tickets to see George Michael or to see The
Wheely Bins? Yes, the name makes a big difference,
and what if your real name is George Michael?
Under the UK
Trade
Marks Act - 1994, a
name can be considered as a Trade
Mark "if
it is capable of being represented graphically"
(which includes written words) and "which is
capable of distinguishing the ... services of one
undertaking from those of other undertakings".
Unlike the Copyright Act, Trade Marks have to be
registered with the Trade
Marks Registry (contact
numbers below), who will
refuse a Name that it considers is too similar to another
registered name. If it accepts your registration, it will
publish your Trade Mark in the Trade Marks Journal,
and if there are no complaints within three months,
they'll send you a Certificate
of Registration. The Trade
Marks Registry offers guidelines to help you
understand the requirements and limitations on
registering new Trade Marks, notably the responsibility
for you as the Trade Mark owner to make sure other people
know that its your Trade Mark, usually by including the
international registered Trade Mark symbol or adding the
words Registered Trade Mark next to your name - not ideal
in a cool poster for your band's tour. They also have a
booklet to advise on international registration.
International rights are overseen by the World
Intellectual Property Organisation (WIPO) run by the UN in Geneva and follows what is known
as the Madrid
Protocol which has
now been adopted by 62 countries worldwide. The costs of
registration of your name in several countries can be
phenomenal. So not surprisingly, very few bands and
performers register their name as a Trade Mark,
particularly as registration is only slightly going to
help win an argument about who has the rights to a
particular name. Consider it as a last resort if you
truly feel your band needs heavy duty protection.
The offence
which you must not commit is known as "passing
off",
which is the attempt to deceive the public (or anyone
else) that you are someone else, such as THE George
Michael. Interestingly, Equity,
the Actors' Union, tries to avoid this risk by insisting
that none of its members have the same professional name
as any other member, but the Musicians
Union does not (contact
numbers below). However,
don't be fooled into thinking that because the MU won't
insist on you using an original name that it doesn't
matter if you're name is not original. Someone who has
been using your name first is quite entitled to ask you
to stop - sending you an order to "cease and
desist". If there is any risk that your public could
confuse you for them, then they may win a case for
financial damages from you if ever it went to Court. Note
that for the other person to succeed in a Court case
against you, they will have to meet four
conditions: 1.
show that they started using the name professionally
before you, 2.
that their name is well recognised in the business, 3.
that there is now confusion in the music business
resulting from your use of the name, and 4.
that they have suffered actual financial losses as a
consequence. Usually, all that happens is that you'll
receive a solicitor's letter from the other people who
use your name demanding that you stop using the name, and
that you withdraw all material, publicity and merchandise
bearing that name. If you do so, you'll hopefully hear no
more about it.
However, if
you are already on tour promoting your first CD, with
adverts in the magazines and posters all over the UK, and
maybe even records in the shops, you don't want to be
ordered to withdraw all those materials and stop using
your name, do you? The safest route would have been to
search for anyone else using your name at the outset, and
to be able to prove later that your search was thorough.
This proof should protect you from any accusation of
"passing off" as the other band. This
is where a registry such as the Band
Register based in
London, (formerly known as the National Band Register
in Oxford), can be invaluable. The Register has been
established for several years and so does include a very
large number of current as well as inactive band names.
If a search of their register doesn't come up with anyone
else using your name, it will at least show that you've
tried, even though there still remains the possibility
that someone else, somewhere, does use the name.
Obviously, they will encourage you to register your name
with them, to minimise the chance of anyone else using
your name in the future. Other people worth checking with
would be your local music journalists and band promoters,
and in the Music Week Directory, the Music
Week back-releases book and the Business
Names Register. Both the Band Register and
the Business Names Register can send you helpful
information about the service they provide. (Contact
numbers below).
When deciding cases of "passing off", the
Courts usually look at the territories (the geographic
areas or the cultural areas) in which the names are
recognised, and will only rule in favour of one party or
another if those territories overlap. For instance, if
one band is widely known in Somerset but never plays nor
sells records north of Birmingham, and the other remains
in Scotland, then there is no overlap. Similarly, if one
is a lyricist for Christmas stage-shows and the other is
a hockey player, there is no cultural overlap.
There are
also other organisations, many which come into and out of
existence as quickly as new venues, offering to register
your name, to copyright your songs and even to get you
heard by important people in the music business - all for
a fee. These are of very doubtful value. If you are
approached by such an organisation, ask the MU's business
advisors if they have any information about them. The
same caution should apply to a publisher who asks you to
pay towards the costs of publishing or promoting your
music - if they are in the business of making money from
the rights to the creativity of their "clients"
(that's you!), and if they are good at it, then they
should be earning a good income from these rights and
should be prepared to invest in new talent. They should not
be expecting you to pay them.
Ultimately, the rights to use a name once a dispute is
settled will probably not be determined by any complex
legal knowledge, and certainly not by considering what is
fair. As with most questions of legal ownership, the
wealthiest party in any dispute is likely to win, so be
prepared to give in under serious pressure. The sooner
you concede, the cheaper it can be.
Disclaimer
And now
the get-out clause:
Nothing in this article can be considered as a substitute
for personal legal advice, and should not be relied on as
legal advice. It is intended to explain the copyright
issues applicable in England, and consequently may not
apply elsewhere. Any money you spend in taking specific
advice should help avoid most of the pitfalls mentioned
in this leaflet, and could easily save you much more in
the long run.
A
story
A young
songwriter we know was offered £6k for some of his
words. What would you do?
He took it.
And why not?
The song "Angels" sold (I think) 40
million copies world wide, sung by Robbie Williams.
You might think that that's worth more than £6000.
Well, if you think that now, why didn't our songwriter
think that when he was entering into the deal?
The songwriter owned the lyrics and didn't know that
they'd earn anything, so he treated them as if they never
would. Now not being able to see into the future is one
thing, but imagining that everything in the future can be
ignored is another. Rather than selling for a fixed
price, he could have licenced them for use in just a
specified way in a specified country. He could have put
limits on the uses that the song could be put to so that
another deal would have to be agreed if the use was to be
extended. He could have put a time limit on the licence.
Best of all, he could have negotiated a percentage deal -
a percentage of whatever royalties were going to be
collected as a result of whatever the future was going to
bring.
Perhaps he didn't take professional advice, but hopefully
if you've followed this article so far, you'll see that
he could have done better for himself if only he'd
understood the principles. Have
YOU grasped the lesson of this story ?
Another
story
This
conversation was reported by Harry
Nelms (USA) :
Just minutes
ago, I had an interesting discussion with a fellow who
works with a small food products company. I asked him how
they protect their products.
He response was "Keep
the formula absolutely secret."
Any consideration given to Patents? "Absolutely
none."
I asked if they had protected their trademark --- the
response was "As I speak,
a major corporation is infringing on our trademark, and
have told us if we do not like it, sue."
Are you going to sue? "No,
they spend more money of tea and crumpets for their legal
staff meetings than the net worth of our company."
As an old man told me many years ago, "getting
something, and keeping it, are two different
things."
A slight paraphrase of that applies well to issues of
patents and copyright.
Credits
This feature
was written by Generator's
Dave Cross, 1999, and was kindly read and commented upon
by Evershed's
Jenny Sinclair and Alex Shiel and by Generator's Martin Jones and MCPS's
Duncan McCrone.
Generator -
0191 245 0099. Eversheds - 0191 261 1661. MCPS (Scotland
& North England) - 0141 204
4030
Contacts
PRS
Tel: 020 7580 5544 Fax: 020 7306 4050 www.prs.co.uk -
royalties paid to songwriters for use of their work. Tel:
0208-664 4400 Fax: 0208-769 8792
MCPS
Tel: 020 8378 7575 Fax: 020 8378 7580 www.mcps.co.uk -
royalties paid by record manufacturers for the right to
record copyright works.
Stationer's
Hall Registry Tel: 0207- 248 2934 Fax:
0207-489 1975 - register of works (everything
from books, & recordings to computer software) with stored copies and of their original copyright
owners.
M.U.-
www.musiciansunion.org.uk
Business Advice Dept. Tel: 0207 582 5566 Fax: 0207
582 9805 - will advise on contracts being considered by
members. Tel: 0207 437 8506
Equity
- a.k.a. Actors Equity. www.equity.org.uk
Tel: 0207 379 6000 Fax: 0207 379 7001 - supports members
interests before, during and after disputes arise. Strong
in the drama and entertainment world with many musician
members.
B.E.C.T.U.
www.bectu.org.uk
Tel: 0207 437 8506 - trade union representing many
technicians in film, TV, radio, theatre & other
studios.
Band
Register www.bandreg.com Friars Style Place, Richmond Hill, London TW10 6NL- register of band names
& track titles.
Business
Names Register. Tel: 0121 643 0227 Fax:
0121 616 1346 - a register of business names including a
search of existing names
A.L.C.S.
(Authors Licencing & Collection Society).
www.alcs.co.uk
Tel: 0207 395 0600 Fax: 0207 395 0660 - association of
collection societies for royalties from publishing the
written word
Trade
Marks Registry Tel: 0645 500505 Tel: 0207-629
0992 Fax: 0207-629 0993
British
Academy of Composers & Songwriters
(BAC&S), formerly
BASCA - British Academy of Songwriters, Composers and
Authors - www.britishacademy.com
representing the interests of composers & songwriters
- may be able to put lyric writers in touch with
composers, or vice versa, or to assist in finding a
publisher. Tel: 0207 629 4828 / 0207 436 2261
Phonographic
Performance Ltd. (PPL) www.ppluk.com
Tel: 0207-437 0311 Fax: 0207-734 9797 Representing the
rights of the makers of sound recordings.
Copyright
Control (CCS) www.copyrightcontrol.com
Representing copyright holders' interests
internationally, esp. issues of software & music
copyright and pirating.
World
Intellectual Copyright Organisation (WIPO) 34
Chemin des Colombettes, P.O. Box 18, CH-1211 Geneva 20,
Switzerland Tel: 41 22 338 91 11 Fax: 41 22 733 54 28 www.wipo.int -
responsible for promoting the protection of intellectual
property throughout the world through cooperation among
States, and for the administration of treaties dealing
with the legal and administrative aspects of intellectual
property
Locating UK Copyright owners http://www.hrc.utexas.edu/watch/uklocate.html
Fact
file ......
The Performing
Right Society (PRS)
The PRS administers rights and distributes
royalties for the public performances of songs composed
by its writer/publisher members. As a songwriter you may
be entitled to receive royalties and by joining PRS, fees
can be collected and paid to writers for performances of
their songs. The money comes from music users in the UK -
radio & TV broadcasters and premises such as pubs,
clubs, restaurants, even hairdressers! - need a PRS
licence. The money collected goes back to the writers and
publishers of the songs as PRS is not run for profit.
How do I become a member of PRS? The PRS Writer
Admissions team are based in London and managed by Stuart
Belsham, there are four representatives who specialise in
different genres of music, including indie, classical and
dance. They can be contacted on 020 7580 5544. In
Scotland, the local PRS representative is Stuart Fleming,
based in the Edinburgh office, who can be contacted on
0131 226 5320 for advice or membership information.
The Mechanical Copyright Protection Society
The Mechanical Copyright Protection
Society (MCPS)is an organisation representing
thousands of composers and publishers of music. It has
agreements with equivalent societies overseas, enabling
it to represent over a million composers and publishers
throughout the world. Working on behalf of its composer
and publisher members, MCPS negotiates agreements with
those who wish to record music, ensuring the copyright
owners are properly rewarded for the use of their music,
whether it be on CD, cassette, vinyl, video, background
music, TV, radio, advertising production or even
novelties, such as toys or greetings cards! It collects
and then distributes these "mechanical"
royalties, endeavours to create simple and efficient
licensing and royalty collection procedures, and has
established a number of Licensing Schemes to cover every
situation where music is likely to be recorded. With its
vast computerised database of information on recorded
works, it can offer information and advice on all types
of music.
How do I become a member of MCPS? MCPS membership is
available to any composer, author, songwriter or
publisher who owns the copyright in a musical work which
is being commercially recorded by anyone other than
themselves. While there is no minimum criterion for
membership, it makes no sense for MCPS to collect
royalties from, for instance, a singer/songwriter's own
label to pay back to him/her! Member Services Department
is based in London, and can be contacted on 020 8378
7575, which is also the main switchboard number. Other
services, such as audio licensing, sample clearance,
repertoire and international licensing of MCPS members'
music on audio visual productions (including internet,
multimedia and other new technologies) is handled by a
team of Music Licence Consultants on 020 7306
4500. In Scotland, the local contact is Duncan McCrone,
based in Glasgow who can be contacted on 0141 204 4030.
In Ireland, the contact is Victor Finn on 353 1 676 6940.
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