Steal This Music

I ran into a friend of mine at a local used record store last week.  I was going on and on about a Rickie Lee Jones EP but his mind was clearly somewhere else.  He had just seen the picture of David Lowery's performing rights royalty statement on the Internet; the one where Lowery demonstrated he had received $16.89 for one million plus  plays of his song "Low" on Pandora. 

             My friend is a music aficionado with refined tastes and leftist leanings and he was clearly pissed. "If the artists are making so little money why don't we just steal their music?” he asked. 

            My response to this question usually depends on how cranky I am.  I basically have three answers. 

            First: right, why don't we just steal the music?  That cat escaped the bag a long time ago.  Everything is available on the Internet and if you don't know how to find it, your teenager does.  Despite the fact that stealing music in 2013 is morally no different than when I walked out of a drugstore in 1967 with the latest 45s tucked under my shirt, it's certainly a lot easier. 

            Second: send the RIAA and their army of lawyers out to sue everybody.  Hell, given the kind of month I've had financially I might even sign up.  Despite the ludicrousness of suing college students and single mothers and despite the fact that even the RIAA seems to have stopped pursuing this strategy, until technology develops an effective way to stop illegal file sharing, mass lawsuits or the government taking down Internet empires like that which belonged to Kim Dotcom  (Megaupload)  may be the only truly effective way to stop spreading illegal music.  

            Third, the real answer is that the music business is now on the honor system and whether we like it or not streaming and similar services are not just the future, they are the present.  I don't particularly like this model.  I'm a dinosaur and like to own physical records but I can't ignore reality.  I wrote about this same subject a while back (http://tripaldredgelaw.blogspot.com/2012/07/in-defense-of-emily-white.html.)

            It’s a turf war and a number of battles are being fought right now over the issues between performing rights organizations, publishers, record companies and artists.  The field is a mess but the royalty situation may improve over time as these different battles shake out.  Everybody's fighting for a bigger piece of an ever-shrinking pie, but I can tell you from some of the recent talks I have heard on the subject, the fights are very serious and they are very real. 

            Artists like Lowery, who presumably were at one time signed to major record deals and major publishing deals really don't have much say in the matter, if they signed away their rights to their master recordings and musical compositions.  I could point out that Lowery just displayed his BMI statement which is just one piece of the pie. He should also be credited with royalties from his record label and his publisher but the fact remains, its still not a lot of money. Truly independent artists, those who still own the rights to administer their masters and their publishing interests can choose to avoid being on these sites (if they are careful in selecting their distribution methods).  The downside to this is that they risk losing exposure to a rapidly expanding audience. 

            It is all daunting but it really does feel like the beginning of a major technological shift. Should artists and songwriters be patient? No, of course not; they need to keep up the fight on all fronts…but we’re not helping them or ourselves by stealing.  

Bob Dylan, Hootie and Derivative Works

I can admit that I am a hypocrite.  I hated that Darius Rucker song “Wagon Wheel” until I learned that Bob Dylan co-wrote it.  Actually, I still don’t like the song much but I was intrigued with the story behind the song.  According to different sources, Dylan created the work as an outtake from the recording sessions for the soundtrack to Pat Garrett and Billy the Kid in 1973.  Dylan expert Clinton Heylin titled the song as “Rock Me Mama”.

Years later, Ketch Secor (who obviously knows his Bob Dylan bootlegs) of the band Old Crow Medicine Show added new verses to Dylan’s riff.  In an amazing occurrence, Bob Dylan consented to the co-write, even with the 28 year time difference, and a song was born.

So legally what is “Wagon Wheel”?  One can’t tell from the publishing information but it meets the definition of a “derivative work” defined in the Copyright Act as “a work based upon one or more pre-existing works, such as … a musical arrangement … or any other form in which a work may be recast, transformed or adopted.”  A derivative work cannot be exploited without permission from the underlying copyright owner.  This is to be distinguished from a “joint work” which is defined as “a work prepared by two or more authors with the intention that their contributions be merged into an inseparable or interdependent parts of a unitary whole”.  This describes the typical co-writing situation where each author owns an indivisible share of the copyright.

Taking this a step further, a parody is a derivative work.  If the underlying author does not authorize the exploitation of the work, the parodist’s only defense is to argue “fair use” as Luther Campbell did in the “Pretty Woman” case, an important case with a holding that nevertheless still confuses me.

There are many different ways that songs can be created.  Think of Billy Bragg and Wilco adding music to the poems of Woody Guthrie or the recent album where  Bob Dylan, Jack White and others added music to lyrics found in one of Hank Williams’ “lost” notebooks.

Lawyers often get involved in the aftermath of these creations.  In the past I’ve had to deal with one co‑writer wanting to add a third co-writer’s contribution to a song after it was considered finished, a co‑writer of the songs in a musical who wanted to use the songs in a different setting and the thorniest issue of all, a co‑writer who wanted to “undo” a co-written composition.

All of these issues present challenges and also make the study of the different forms of collaboration and the legal repercussions endlessly fascinating.

Steve Weaver's Negotiating Exclusive Songwriting Agreements

I have been meaning for some time to write about my friend Steve Weaver’s book Negotiating Exclusive Songwriting Agreements.  This is not really meant to be a review because I am biased.  I reviewed Steve’s manuscript and was honored to write a blurb for the back of the book.

                What I said in my blurb is true.  There are so many worthless books on the music business and precious few books that tell you exactly what stuff means and how it works.  Steve’s book is a step-by-step analysis of an exclusive songwriting agreement,  meaning he analyzes each paragraph of the agreement from both the writer’s perspective and the publisher’s perspective and explains why each party asks for certain things and resists certain things.  This is really important information for anyone who is trying to get a handle on how these agreements are supposed to work.  One of the other things I said in my endorsement was that I wish this book had been available at the beginning of my career.   As a young lawyer, it really can be difficult figuring out how certain entertainment contracts are supposed to work and it can be difficult to know when you are asking for too much or too little. However, this book is not just for attorneys.  Anyone with more than a passing interest in music publishing can benefit from this book. The only other book that I have found as helpful as this is Randy Poe’s A Songwriter’s Guide to Music Publishing and I don’t know if it’s still in print.

                Steve has indicated that he hopes to write other books in this series “Entertainment Law Mentor” and I think he could do a great service  for the industry if he does write similar books on such topics as  recording agreements, producer agreements, manager agreements, etc.

                As Webb Wilder says “pick up on it.”. It’s available here as a Kindle edition: http://www.amazon.com/Entertainment-Law-Mentor-Negotiating-ebook/dp/B009INKQVS/ref=sr_1_1?s=books&ie=UTF8&qid=1353348800&sr=1-1&keywords=Negotiating+Exclusive+Songwriting+Agreements as well as in a physical format.

Read Those Old Contracts

I had a long conversation with a friend/client yesterday.  She mentioned that she had been reviewing some of her old publishing contracts and discovered that she was entitled to a reversion of some of the songs in her catalogs.  It is not unusual for songwriters, especially those who have been at this for awhile and have had multiple publishing deals to find out that there are elements of their contracts that they might not remember.

 Reversion clauses in contracts can be tricky because they are sometimes limited in terms of the amount of time the writer has to notify the publisher to exercise the reversion.

I can think of other types of reversions; for example some recording contracts may feature a reversion of masters and  all master license agreements essentially function the same way.  Again, the trick in all of these instances is that the artist has to take some affirmative action to get their materials back.

There are other dates to keep in mind. Old management contracts may contain sunset clauses-you don’t want to be paying commissions when it’s no longer required. Of course, all contracts have limitation periods after which one can no longer object to a statement or accounting.

Finally, as I have discussed before, with the coming onslaught of statutory terminations under the Copyright Act, keeping up with dates is going to be of more importance than ever before.

As a lawyer, I try to keep up with these important dates for my clients but it’s not always possible, especially when a client has changed attorneys, moved, etc.  Therefore, it is important for all artists to undertake this process-of going back through their old contracts.  You never know what you may discover.

Lawyers and Their Briefs

This makes no sense to me.  A group of lawyers have sued Westlaw and LexisNexis for reproducing their legal briefs as part of  the companies’  online database of court filings.  I have always assumed that anything filed in court is part of the public record and hence the public domain.  At least as far as federal court goes, briefs are readily accessible through the federal court system’s comprehensive  web site.  I suppose that anyone can slap a copyright notice on their brief, register their copyright with the Library of Congress and assert their statutory rights but on the other hand, stealing other lawyers' forms, pleadings and briefs has been a tradition in the legal profession, probably dating back to the Greeks and the Romans.   Seriously, all of our forms and pleadings come from somewhere and studying and reviewing  legal briefs and their theories filed in similar cases is simply good training and research.

                Apparently the federal judge in the Westlaw/LexisNexis case dismissed those lawyer plaintiffs  whose briefs had not been registered for copyright for the simple fact that registration is prerequisite to a copyright infringement suit but as to the number of lawyers who actually registered the copyright in their briefs, the lawsuit is still moving forward.  Might I suggest that we are going to see the fair-use defense soon?  We might also see a defense of lack of originality. Either way, it’s a strange case.

Tomorrow Never Knows: Don Draper Does the Math

I am a huge fan of "Mad Men".  I am also a huge Beatles fan and once I discovered that the show’s  trajectory was chronological,  I have been anticipating Don Draper's discovery of the Beatles.  While we have had nice little references in the past (Don buying his daughter Sally the latest Beatles’ record, Don trying unsuccessfully to meet the Rolling Stones to discuss a television commercial) nothing prepared me for the visceral excitement of watching and hearing Don drop the needle on "Tomorrow Never Knows".  Matthew Weiner got this exactly right.

                The next day we learned that the show paid approximately $250,000.00 for the synchronization license and master use license i.e. the right to use not just the song but the Beatles' original recording on the show.  Every music lawyer knows what a coup it was for the producers to get the master use rights as well as the synchronization rights to "Tomorrow Never Knows".  I thought it would be fun to guess what the various interested parties might have made on this deal.  Understand this is pure conjecture, based on traditional record company/publishing company economics.  The Beatles’ story is not traditional. The story of how Lennon and McCartney founded a publishing company, then lost it, only to see it end up in the hands of Michael Jackson and Sony has been reported many times (apparently most explicitly in a book called "Only a Northern Song" that I am still waiting to get my hands on).  Additionally,  everyone is aware of the fact that the years of litigation between the Beatles and EMI mean that the Beatles most assuredly do not have a traditional 50/50 split of license fee income with EMI…but assuming that they did –

                Then, one has to also assume that this deal involved the traditional split of 50/50 between master use license and synchronization license.  That is not always the case but it is a good rule of thumb.  Under this scenario the publisher of the song, Sony/ATV would receive $125,000 of which $62,500 would be paid in equal shares of $31,250 to Paul McCartney and the heirs of John Lennon (as an aside it looks as if Lennon's share of the copyright to the song was renewed in 1995 in the names of Yoko Ono, Sean Lennon and Julian Lennon).

                From the master use side, typically the label EMI (the parent company of Capitol) would split the master use fee 50/50 with the artist which means that it would pocket $62,500 and pay out approximately $15,625 to each of the Fabs or their heirs.

                Again, all this is mainly illustrative and is not meant to presume to know the intricacies of Apple's finances.  However if anyone knows more details about this deal please share.  In the interim, I  can wonder what Don Draper's reaction would have been had he heard the original "Anthology" version of "Tomorrow Never Knows" and what Don Draper, the ad man would have thought about paying $250,000 to use a song in a television show.