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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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