The National Music Publishers’ Association filed complaints on Monday, August 24th against two companies alleging copyright infringement for their unauthorized use of song lyrics.

The companies – Motive Force and LiveUniverse – both operate web sites which allow users to read and search for song lyrics from thousands of songs. Both companies also use many “web 2.0″ features to allow users to access the lyric database in Facebook, iTunes, and other third-party applications.

A look at one of the complaints reveals that the Publishers’ Association is alleging, among other things, copyright infringement on the basis of unauthorized public display – one of the few times this particular exclusive right is relevant to musicians. The Association also alleges this infringement is not innocent: both companies, they claim, earn significant revenue from advertising, soliciting donations, and driving traffic to their other ventures.

Billboard reports that NMPA President David Israelite has been leading the NMPA in an effort over the last three years to protect songwriters’ lyrics by contacting hundreds of unauthorized lyric sites providing them opportunities to properly license their content or risk a lawsuit. Says Israelite, “Music fans are the biggest losers when licensed businesses, like LyricFind, Gracenote and TuneWiki can’t survive and prosper because unlicensed, illegal businesses are allowed to thumb their noses at the law.”

Publishing.

This one word has caused more musicians to pull their hair out than any other word in the music business. It’s a tricky and confusing subject – confusion that’s aided by the unintuitive nature of copyright law, the use of archaic terms left over from the history of music publishing, and the general craziness of the music business.

But music publishing is one of the most important aspects of the music business. Every musician wishing to earn money from their music needs to have at least a general understanding of publishing.

If you’ve been following the Music Business 101 series here on GrindEFX, you should have a leg up on copyright and licensing, which form the basis for music publishing. If you haven’t read them yet and are unfamiliar with those concepts, why not check them now – I’ll wait!

What is Publishing?

If you recall, the law recognizes two separate copyrightable works in the music world: musical compositions and sound recordings. Musical compositions are merely “songs” – melody, rhythm, arrangement, lyrics (if there are any). Sound recordings are songs fixed on a physical media – CD’s, records, mp3’s (collectively referred to as phonorecords). Sound recordings, then, always incorporate an underlying musical composition.

Licensing is the act of granting a third party rights to your work, presumedly to make money. You can license musical compositions and sound recordings.

Publishing, at its very simplest, is the name given to licensing musical compositions. Other than the name, there is no legal or practical difference between publishing and licensing any creative work besides musical compositions – it’s just that history and custom has given the licensing of musical compositions a unique name (probably to confuse musicians).

Just as you automatically receive a copyright whenever you create a work in a fixed form, you become your own publisher when you create a musical composition. Again, don’t let the word trip you up – all this means is that, as with any other work, you are able to do anything you want with your song, including licensing it to other people to help make money from it.

So, if you’ve created a song, congratulations! Not only are you the owner of a copyright, but you are also officially a publisher. But simply being a publisher won’t make you money – you have to act as a publisher, or find someone else to do it for you.

Music publisher extradordinaire Michael Beall describes publishing this way:

There is no money generated by the act of writing a song; it’s just what you do. Music publishing is the business of turning songs into something that earns money. So if you want to earn money from your songs, you have no choice but to take on that role of the music publisher. Songwriting is the act of creating the music, and publishing is looking at your creation and thinking of revenue outlets for it.

A Brief History – Or, Why is it Called ‘Publishing’?

So why, you may ask, do we give the act of licensing musical compositions the fancy name “publishing”? The answer lies in history. Before the invention of recorded music, there were pretty much only two ways to propogate music: play it live, or write it down as sheet music. During the 19th and early 20th centuries, sheet music was big business. The most popular songs would sell millions of copies, and the sheet music publishers were the big players of the time (perhaps you’ve heard of Tin Pan Alley).

Around the beginning of the 20th century, the player piano became immensly popular. With specially-made piano rolls, anyone could enjoy the sounds of popular songs in their own home without needing the ability to play the piano. Music publishers and songwriters began licensing their songs to piano-roll manufacturers, creating a lucrative new revenue stream. The “mechanical license” was born – a license of a musical composition to the manufacturer of a mechanical device that plays that musical composition.

With the invention of radio and recorded music, publishers expanded their role to incorporate these new avenues for licensing. Today, the publishing of sheet music is only a small part of any song’s licensing income, but the term “publishing” is still used to describe any and all licensing of a musical composition. And while piano rolls have fallen off the map, the mechanical license remains. It now refers to the licensing of a musical composition for any phonorecord – from albums to digital files and even ringtones.

Enough With the Yackety-Yak, Show Me the Money!

If you’ve made it this far, you’re probably thinking “Wonderful, I can call myself a publisher, and you even managed to sneak in a history lesson. Now can you get to the part where you tell me how I can use this information to make some moolah?”

Okay then.

Remember, any income from licensing stems from one or a combination of any of the exclusive rights encompassed by copyright: reproduction, distribution, public performance, etc. I’ve listed below just a few of the most common ways musical compositions can generate revenue.

• Mechanical licenses – physical and digital sales of sound recordings, ringtones
• Public performance licenses – radio, internet streaming, concerts, background music in retail establishments, jukeboxes – any music that is performed or transmitted to a public audience alone and not with a visual element falls under this type of license (most are administered by Performance Rights Organizations, the subject of next week’s entry in the series)
• Sync licenses – use of the song in movies, television, television commercials – as the name suggests, any use of music synced to visuals (including video games)
• Sheet music licenses – still around, but not a very large income generator, especially for the hip-hop and electronic genres
• Public display licenses – yes, if your song has lyrics than you can license the public display of those lyrics – for example, on lyric websites (though I’m unsure if many lyric websites operate above-ground)

The first three licenses by far generate the majority of income for songwriters. Let’s take a real quick look at how you go about getting these licenses.

If the songwriter is also the recording artist then the mechanical license is a moot point. If the songs are being released by a record label, than the record label will provide for a mechanical license payment to the songwriter through the recording contract (usually this involves a controlled composition clause). If the songwriter is selling the album himself, then he’s already collecting the mechanical license from the proceeds of the sales (in a very strict sense, the musician as songwriter has granted an implied mechanical license to the musician as recording artist, and the musician as recording artist ‘pays’ the musician as songwriter a percentage of the gross sales.)

It’s only when a recording artist other than the songwriter wishes to use the song that the mechanical license comes into play. These may be entered into directly between the songwriter and the recording artist (or record label). A large number of mechanical licenses are administered through the Harry Fox Agency, which acts as a clearinghouse for many music publishers and licensees. Finally, in the United States (and several other countries), once a song has been published, any recording artist can obtain a compulsory mechanical license to make a new recording of the song without needing permission from the songwriter.

Except in rare cases, public performance licenses are administered by blanket licensing organizations known as Performance Rights Organizations – ASCAP, BMI, SOCAN, PRS, etc. I will be explaining PRO’s in more depth next week.

Sync licenses are negotiated one-on-one between publishers and producers or between music placement agencies and producers.

Music Publishers

Not only is publishing a difficult subject to learn, it involves a lot of work. Fortunately, as with pretty much anything in life, you can find someone else to do that work for you. When it comes to music publishing, that someone else is known as a (wait for it) music publisher.

The biggest advantage of working with a music publisher is clout. Someone with connections and contacts in the industry can do a lot more with a song then an unknown artist. Even if you have your own connections, doing your own publishing takes up a lot of time – time that could be spent writing more music. And even though musicians should educate themselves about the basics of the music business, many don’t care for the business side of music and are more than happy to let someone else take care of those things.

Along with shopping and placing your songs, music publishers take care of administrative duties – all that fun stuff like registering copyrights, doing the paperwork for PRO’s, accounting, and keeping an eye out for infringement.

Of course, music publishers don’t work for free. They typically make money by taking a cut of your publishing income – most commonly anywhere from 10% for a basic administrative publishing agreement all the way up to 50% for a publisher taking an active role in shopping and placement. While it is starting to become less common, music publishing agreements may call for a songwriter to assign a portion or all of his copyright to the publisher. You may have heard people warn you that whatever you do, never give your copyright up! Why would a songwriter want to enter into such an agreement then? The simple answer is that in some cases it may make sense. Giving up your copyright to get 50% of a lot of money that a well-established publisher can generate from your song is a lot better than getting 100% of nothing on your own. It all comes down to the individual songwriter (and his lawyer hopefully) to decide if the benefits outweigh what he is giving up.

Signing with a music publisher is getting more difficult. Like major record labels today, music publishers are more likely to sign artists who are already generating income from their songs rather than unestablished musicians.

Conclusion

Hopefully you understand a little more about publishing, but I’ve only scratched the surface – given you the broad strokes in an incredibly detailed and complex area of music business.

More Resources

• All You Need to Know About the Music Business by Donald S. Passman – The closest thing to a bible for the music business. Any musician – independent or not – who is serious about earning money from their craft should have a copy of this on their bookshelf.
• Taxi: Publishing – An excellent collection of articles going into music publishing and how music publishers operate. Includes an article by Donald Passman about setting up your own music publishing company.

Previous posts in this series

• Music Business 101 – Copyright
• Music Business 101 – Copyright Registration
• Music Business 101 – Licensing

Image courtesy of Now I’m Always

It appears John Legend stands to be one of the few major artists preparing for his future. According to Cherry Lane Publishing, both parties agreed to extend their relationship with an exclusive joint venture named “HomeSchool Music”. This newly formed deal will allow Legend to sign and guide various writers.

“I’ve had such a great, successful working relationship with Cherry Lane. It felt right to expand the partnership and create a new business venture. I look forward to working with them further and finding and developing new talent.” – John Legend

Source: Cherry Lane Music Publishing

The stage is set. The audience quiets as the house lights go down. The curtain opens, and a single spotlight trains itself on you. You pull out your cell phone. It rings, playing the latest hot pop song.

After 30 seconds, the cell phone goes silent. You take a bow, the audience applauses. Thank you for coming to tonight’s performance, please have a safe drive home!

Sound absurd? Not if ASCAP gets its way. The Performing Rights Organization wishes to have ringtones classified as public performances under copyright law. Everytime your phone rings, so do ASCAP’s cash registers.

On Friday, the Electronic Freedom Foundation posted a story covering ASCAP’s brief in a legal fight between it and AT&T seeking this very thing.

Now, I’m a supporter of ASCAP. They are a powerful ally to musicians of all stripes – from superstar to the most independent of artists. But this latest move by them would just add another layer of wackiness to the already convoluted and crazy landscape of copyright law and licensing. It reminds me of the Author Guild’s attempt to collect public performance royalties from Amazon’s Kindle device. Because it contained a feature allowing a speech synthesis program to ‘read’ the book you’ve purchased to you. Pretty handy if you’re, say, blind.

I haven’t had the time to fully analyze ASCAP’s legal argument in its brief, but one thing did pop out at me. They use quite a bit of legislative history to back up their interpretation of what a ‘public performance’ is. In the realm of statutory interpretation, legislative history ranks pretty low. Most judges only turn to what Senators and Representatives said during the bill-making process when more robust methods of interpretation cannot resolve certain ambiguities in the statute’s text itself. Some judges (Supreme Court Justices Scalia and Thomas in particular), avoid using legislative history at all if they can help it.

Not only that, but the legislative history they cite, except for one instance, is from the 1960’s and ’70’s. This is well before the time of cell phones. (Never mind ringtones themselves; the first mobile device with custom ringtones came out in 1996.) It’s a stretch to find legislative history useful for a situation that was beyond comprehension at the time it was made.

The EFF points out several further problems with ASCAP’s legal argument. Notably, the Copyright Act carves out an exception to the public performance definition in 17 U.S.C. 110(4) for performances made “without any purpose of direct or indirect commercial advantage.” Along those same lines, I would include the following language from 110(5)(A):

(5)(A) except as provided in subparagraph (B), communication of a transmission embodying a performance or display of a work by the public reception of the transmission on a single receiving apparatus of a kind commonly used in private homes, unless —

(i) a direct charge is made to see or hear the transmission.

This basically exempts you from having to pay a royalty for playing your car radio with your windows down, or your headphones to loud on the subway. That seems like common sense to most of us (which is probably why it needed to be specifically spelled out in the Copyright Act.)

But even if ASCAP has made a successful legal argument, the judge should not find for them. This is one of those situations much like the one Supreme Court Justice William Douglas wrote about when he tossed aside centuries of common law because of a technological advance. The defense wanted him to uphold the idea that property rights extend infinitely toward the heavens, requiring the newly established airlines of the time to negotiate with each and every property owner to gain the rights needed to create a flight path. Justice Douglas’s famous reply was,

“Common sense revolts at the idea.”

Common sense revolts at the idea that when your phone rings, it is on par with putting on a play using music, or a radio station broadcasting music to thousands of listeners.

An interpretation of the law that would make that the case is beyond common sense and logic. ASCAP only wants a bigger piece of the pie.

Image courtesy of samantha celera