FAQs
ABOUT THE MUSIC INDUSTRY
These FAQ's have been graciously
provided to us by Paul Sandserson
& Associates, an extremely
well respected law firm
located in the downtown-heart
of Toronto, Canada.
If you would like to additional
information about Paul Sanderson
& Associates, please visit
their website @ www.sandersonassociates.com
Our
Art is Law(taken from
the Paul Sanderson & Associates
webpage)
Paul Sanderson & Associates
is an Arts, Entertainment,
& Multimedia firm located
in the heart of the arts
and entertainment district
in downtown Toronto, Ontario,
Canada. We are Paul Sanderson,
Blair Holder, Chris Taylor
and paralegal Paul Irvine.
We each have resources within
the legal community and
music business, maintaining
a network of international
contacts. We are committed
to nurturing music and art
careers.
Our expertise focuses primarily
on music, but also deals
with visual arts, multimedia,
advertising, fashion, television,
film, computer, and intellectual
property including trade
mark and copyright matters.
We represent recording artists,
songwriters, artist managers,
record producers, music
production companies, music
publishers, record distributors,
record labels, music industry
executives, booking agents,
visual artists, software
developers, clothing designers,
fashion models, television
producers, film production
companies and advertising
agencies.
The lawyers at Paul Sanderson
& Associates regularly participate
as seminar panelists, guest
lecturers and professors.
This section, "Frequently
Asked Questions" (FAQs),
sets out brief answers to
many of the common questions
posed when the lawyers speak
to various groups.
How
many songs should we put
on our demo tape?
The industry really rarely
likes to see more than three
or four songs on a demo
tape. It should be three
or four of the best songs
that you have with the best
song first. If you have
only one good song, then
put that song on the demo.
How
do we get our demo to a
record company?
While many record companies
accept "unsolicited material",
sometimes it is necessary
to go through a manager
or a lawyer that the record
company is familiar with.
Unsolicited demo tapes can
be sent via courier, mail
or delivered personally.
How
do I copyright a song?
Copyright, in most cases,
arises automatically under
The Copyright Act in the
absence of any formality
such as a registration.
The song however, must be
original, that is, not copied
from another copyright protected
work.
How
much are your rates?
Lawyers' rates vary depending
on the service to be performed.
Some rates are flat rates
on routine matters and some
rates are billed at hourly
rates. Our rates currently
range from 85.00 an hour
for a paralegal to 225.00
an hour for the most senior
associate.
What
is music publishing?
Simply put, music publishing
in the business sense, is
the exploitation usually
by way of licensing rights
to musical compositions
with a view to making money.
In the legal sense, music
publishing means issuing
copies to the public. Copies
may be in the form of a
tape, sheet music or records,
for example.
How
do I find a manager?
Finding a manager can be
a difficult task. In most
cases, if an Artist has
commissionable earnings,
a record deal in hand and
a publishing agreement,
managers often come to the
Artist. A manager can be
solicited much like a publisher
or a record company. Often
managers find artists and
not the other way around.
One
of our band members has
left the group. Can we still
use the songs we wrote together?
Can we still use the band
name?
Both of these are complex
legal questions and skilled
legal advice should be obtained.
Under The Copyright Act
in Canada, the general rule
is that the songs that were
co-written cannot be exploited
without consent of the other
co-writer, so if there is
a dispute as to exploiting
the songs, it may be difficult
to use the songs that were
co-written. Use of the band
name triggers a complex
trademark issue and skilled
legal advice should be sought.
How
do I get our indie CD into
record stores across the
country?
One would approach the appropriate
rack jobber and they would
order based on demand.
Do
you shop demo tapes to A&R
representatives?
The firm will consider "shopping"
or "soliciting" to publishing
companies, record companies
and managers and we do listen
to a lot of material that
is sent to the office. Clearly,
in order to do so the firm
must assess the material
and believe that we could
be effective with respect
to such material.
What
do people mean when they
say "keep your own publishing"?
In essence, "keeping your
publishing" means keeping
the copyright to the music
that you have written, own
or control. In terms of
dollars it means that you
will retain the publishers'
share of revenue (typically
50%). If, for example, your
publishing agreement is
divided on a 50/50 net basis,
this means that the writers'
share is 50% and the publishers'
share is 50%. If you keep
your publishing, you will
receive both the writer's
and the publisher's share
of revenue. It is important
to note that a writer customarily
never receives less than
the writers' share in any
publishing agreement.
This question raises another
issue worth considering.
Why would you want to keep
your own publishing? It
depends on the facts of
each situation. For most
songwriters, there is a
time and a place that a
publishing deal can and
should be made. Such an
agreement may be entered
into for the purpose of
obtaining money that you
can get by way of a publishing
advance, which can allow
you to complete a record.
Without it some artists
may never find a record
deal.
While you do retain more
of the income when you hold
on to your publishing, you
will not have a publisher's
expertise in placing your
material or developing your
talent through a development
deal. There are many reasons
why you would want to give
up your publishing (that
is, enter into a publishing
contract with a publisher).
The timing of such decision
is absolutely critical and
is subject to the facts
of each case. Obviously,
you don't give away your
publishing for nothing.
If you do give it away you
would want to be reasonably
compensated for it and/or
have some means of getting
it back after a period of
time. You may choose, for
example, to give up your
publishing to a publishing
company without a nominal
advance against royalties
in hopes of getting a cover
version. If the cover version
does not happen within a
reasonable amount of time,
maybe twelve months, you
would then ask for the publishing
rights to revert to you.
Publishing agreements may
be entered into because
an act needs more money
for tour support which they
are not getting from their
record company or they may
consummate a publishing
deal after their publishing
has gained some value. The
act may have released records
which have gone gold or
platinum and increased the
value of their publishing
catalogue.
Your decision to give up
publishing or not will depend
upon your specific set of
circumstances and in either
case, skilled legal advice
should be obtained prior
to making such decisions.
How
does one ensure that they
are being paid royalties
from a radio station?
If you are a member of SOCAN,
either as a songwriter or
a publisher and if your
songs are listed with SOCAN,
SOCAN regularly monitors
radio stations via a computer
logging system so that appropriate
royalties will be paid.
For more information contact
SOCAN at 41 Valleybrook
Dr., Don Mills, Ontario
or phone 445-8700.
How
should demo tapes be delivered?
A demo tape can be hand
delivered, couriered or
sent by mail. The urgency
of the submission and whether
or not it is solicited will
affect your decision on
how to send the demo tape.
In many cases unsolicited
material is not accepted.
A solicited tape is a tape
that is requested or sent
by way of recognized representation
as discussed above. In such
case one should attempt
to have material solicited
by a recognized representative,
for example, an artist manager
or a well known booking
agent. In order to ensure
that a musical composition
is solicited you might send
an inquiry letter first
and then wait for a reply
with respect to soliciting
your material.
When sending an introductory
letter, it should be made
clear who is making the
request. It must be clear
who is involved in the project
so that enough interest
may be generated in order
to have the tape solicited.
How
do I get permission to use
a portion of someone's copyright
material (for a sample)?
This question is more complicated
than one would first think.
There are a number of copyright
materials which may require
clearance. They would include
artistic material, musical
copyrights and copyrights
in sound recordings. A related
issue is how to obtain consent
to use a person's name and
likeness.
With respect to clearing
reproduction rights for
musical copyrights, most
Canadian publishers are
represented by the Canadian
Musical Reproduction Rights
Agency (CMRRA). This is
a good place to start to
coordinate a search for
a clearance for such license.
In addition, there are a
number of commercial, private
search houses which could
be hired to assist in the
clearing of such rights.
With respect to clearances
for copyrights in sound
recordings, one may approach
the Audio and Visual Licensing
Agency which deals with
record and video masters
or approach the relevant
record company directly.
With respect to artistic
works, for example, use
of artistic work on an album
cover, the copyright proprietor
should be contacted. In
most cases this is the artist.
There are a number of copyright
clearing houses for artistic
materials such as the CARFAC
Copyright Collective or
VisArt who can be contacted.
What
is the best way to present
myself on a demo?
Currently, the best way
to present yourself on music
is with a high quality chrome
cassette. DAT (Digital Audio
Tape) is not required. However,
a number of the record companies
do indeed accept DAT and
more will in the future.
A video is not required.
A video should be paid for
by the record company and
is not essential in a presentation.
A good bio package is also
essential.
Are
night clubs required to
pay royalties for playing
copyrighted music? If so,
when and how is it monitored?
Night clubs and any other
venue where music is performed
in public are required to
pay public performing rights
royalties. This is monitored
by SOCAN, Canada's only
performing right society.
Night clubs are licensed
under a blanket license
and pay a yearly fee to
SOCAN. In addition, in other
venues such as concert venues
and other places where music
is performed in public,
(for example, in air planes
or football stadiums), SOCAN
has jurisdiction and license
such venues for performances
of music in public.
How
does an independent label
gain access to the international
market?
This question is one of
marketing and international
contacts. This is often
done through international
music events such as MIDEM
held in the south of France
annually. Like any business,
the music industry is a
business of people. Attending
at industry functions, such
as CIRPA events or the Canadian
Music Week conference, are
all useful ways to meet
people. Speaking to people
on the telephone, writing
letters and soliciting materials
through the mail is often
how independent labels gain
access to the international
market. Members from our
firm have attended MIDEM
every year since 1988.
When
should I publish my music?
The decision whether or
not to publish your own
music is often made as a
matter of expediency. For
example, if as a song writer
you have been unable to
attract the interest of
an established music publisher,
you may make the effort
on your behalf to publish
your own material. Publishing
generally means exploiting
musical compositions by
licensing rights such as
music rights to movie production
companies (synchronization
rights) or obtaining cover
recordings of the music
(mechanical rights).
Whether or not you should
enter into a publishing
agreement is a complex issue
subject to many legal and
business factors and skilled
legal advice should be sought
in each and every case.
Can
an artist be successful
managing him/herself? Does
an astute business minded
artist need representation
by a manager?
The answer is yes, an artist
can be successful in managing
him/herself. However, at
a certain point in an artist's
career, in order to be successful
as an artist, that is, to
continue to be free to record,
perform live and write songs,
all of which require large
time commitments, a manager
then becomes valuable (in
essence to enable the artist
to actually be "an artist".
In addition, managers can
be helpful in providing
the following:
- Advising
the Artist on useful personal
and business matters.
- Using
their professional contacts
in the industry to further
an artist's career.
- Using
their contacts in order
to raise money to promote
the artist's career.
When
should I send my lyrics to
a performing right society?
How much does it cost per
song?
Performing rights societies
do not archive copies of lyrics,
songs or recordings. However,
lyrics are part of a song
which may earn performing
rights royalties with SOCAN.
Keep in mind, however, SOCAN's
is a title only system, there
is no deposit of lyrics or
music required. This should
be done prior to release of
a recording or prior to the
time when public performance
royalties may be earned from
airplay, for example. Keep
in mind that one must be a
member of SOCAN, either a
publisher or writer member,
in order to register songs
with them. Such registration
costs nothing.
I am the
author of a song that another
artist wants to take a sample
from. I don't know how to
charge them for the use of
my material or how much.
Concerning sampling, there
are three issues to discuss.
If a record company has rights
in the sound recording and
a publisher has the copyrights
to the song which is sampled,
then their consent must be
obtained. In addition, in
some cases the artist's consent
will be required.
This question as to what will
be payable varies largely
depending on the stature of
the artist who is sampling
the material. But as a general
rule, if it is a sample from
a record which results in
another recording, a percentage
of artist's royalties on future
recordings would be payable.
In addition, if a musical
composition is sampled, then
the right to share in a percentage
of future publishing income
should be worked out.
The above question deals with
the issue of whether to be
a member of BMI or ASCAP (which
are two of three American
performing rights societies)
as opposed to SOCAN, (which
is Canada's only performing
right society) and is a complicated
decision. It very much depends
on the facts of each case.
Most typically, songwriters
join the society in the territory
for which they live; that
is, American songwriters would
join one of the American performing
rights societies and Canadians
would join SOCAN.
It is true that currently
BMI or ASCAP has a different
monitoring system than SOCAN,
but if you are not getting
airplay in the American market,
it does not necessarily mean
there will be more money for
you as a songwriter and publisher.
In fact, if there are not
public performance rights
earnings in the foreign territory
of the United States, it will
not mean more money at all.
When one joins SOCAN, you
have the ability to elect
which U.S. foreign performing
rights society affiliate,
(ASCAP or BMI) would be administering
your repertoire in the United
States. For more information,
I suggest you contact SOCAN,
Member Relations, in Toronto
at 445-8700.
How do I
get out of a bad written management
contract (artist)?
A personal management agreement
may contain contractual remedies
under the agreement itself,
for example, a performance
obligation to obtain a recording
contact within a specified
period of time, or maintenance
of a certain level of gross
income. If not met within
the specified time set out
in the agreement, then one
would look to these contractual
remedies, which may allow
the term of the contract to
be terminated. Other fundamental
breaches, such as failure
to allow an audit or failure
to account may allow the right
to terminate the term of the
contract.
Normally, termination of the
agreement by the artist is
done by giving notice to the
manager in writing via registered
mail or courier. It may be
subject to a default and cure
clause. A default and cure
clause usually states that
you must put the manager on
notice first that he or she
is in default of fulfilling
their obligations, and allow
them reasonable time to cure
the default, usually a thirty
or sixty day period. One can
further look to case law to
see if the term was unduly
restrictive, in restraint
of trade or unconscionable
- these determinations should
be made by someone with skilled
legal knowledge, and ultimately
may be made by a Judge.
One should not overlook the
human aspects of the relationship.
A negotiated settlement is
often advisable and more cost
effective than litigation.
If the arrangement is not
working out for the artist,
it is probably not working
out for the manager either
and joint consent may be given
to terminate. A release under
the agreement should be in
writing signed by both parties.
If you have not looked at
this dimension first, you
may be wasting a lot of time
and money.
How
much money will I make when
my song is played on the radio?
It is difficult to give an
exact figure, as the form
of revenue is contingent upon
several relevant variables
such as: where your music
is being played and how often,
the length of your song, how
much of the song you wrote,
and your retained publishing
rights to the song.
Commercial radio stations
are required to pay a fee
to the performance rights
society (SOCAN in Canada),
who in turn monitors the stations'
airplay and administers payments
to the appropriate parties
(songwriters and publishers),
based on the above variables.
However, these payments, referred
to as public performance royalties,
are not generated from airplay
your music receives on college
radio stations. While college
stations are licensed to broadcast,
they are currently not logged
by SOCAN, therefore, no public
performance rights fees are
paid for such airplay. A gross
sum can range from several
hundred to several thousand
dollars, inclusive of both
writer and publisher performance
royalties in Canada, depending
on how much airplay is generated.
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