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Protection Racket

In depth question and answer session on the musician's worst nightmare.


Every musician dreads having his material ripped off, but how many of us can make sense of the legal spaghetti that is copyright? Adrian Legg... an expert through (bitter?) experience... sits down to answer the most common questions. Prepare to Save Your Songs.

What is Copyright?



The Oxford English Dictionary says: "Exclusive right given by law for a term of years to author, designer etc, or his assignee, to print, publish or sell copies of his original work". That is, if you made it, you have the right to do what you like with it without interference.

Nobody else can use it unless they do a deal with you.

'Use' can mean anything. Someone playing a record of your stuff at home is 'using' it, but he has done a deal with you by virtue of their being a royalty for you included in the price of the record. Someone playing your record in public is giving a public performance of your work. That performance should be licensed by an organisation called the Performing Right Society. PRS members (that means you) receive their share of that licence fee as payment for the performance.

Or a certain rep for a certain musical instrument company has been reported to me as having offered freebie tapes of my stuff to instrument dealers in the North. He is using it to make himself look good or 'in' just as much as if he'd stolen my best leather. His use is illegal as he does not have my agreement.

Note that there are some exceptions to the individual right, eg, if you work in-house at a publishing company on a writer's salary, then unless your contract of employment clearly states otherwise, the publishing company may own the copyright in your work. Also, colleges and universities may own the copyright in students' work. Check with your solicitor if your position is at all dodgy, or with the MU. You should also read "A Brief Guide to Copyright in the United Kingdom", by Denis de Freitas, £1 from the British Copyright Council, (Contact Details). While you're at it, the Performing Right Society is at the same address. Ask the public relations department for a copy of the proposals of the Music Copyright Reform Group, and it would be courteous to send a stamp.

If I write a song, how can I make sure no-one nicks it?



You have an automatic copyright in law which exists as soon as your work is created and put into transmissible form such as tape, paper, or record. Theoretically, copyright law will protect you from thieving, but the Copyright Act 1956 is generally reckoned to be about as up to the minute and razor sharp as the horse and cart tracks around the Adam Smith Institute's intellectual bog. More of that later, though.

You can prove the time at which your work came into existence by depositing a sealed up copy bearing the name of the writer and the completion date with your bank — have a chat with the manager, it may take the heat off the overdraft.

If you are a Performing Right Society member, then you were required by the Society's rules to register a work immediately it was completed, and this covered the problem. Nowadays, the work must have been publicly performed, published, recorded or broadcast before it can be registered; this saves the PRS computer getting bogged down in everybody's fantasies.

How do I claim copyright?



Every copy of the work should bear the copyright symbol ©, followed by the name of the copyright owner and the year in which it is first published or released for sale to the public. © Adrian Legg 1986. There, I just claimed my copyright in this article.

This isn't strictly necessary in the UK, but can be crucial abroad or in the USA where failure to actively claim copyright may result in irretrievable loss of the copyright. It may be desirable to register in the Register of Copyright, the Copyright Office, (Contact Details) if you are going for the States in a big way. Write to them and they will send you half a ton of paperwork; but normally the © Copyright claim is enough.

How do I get paid?



Simple. I set up a publishing company, you assign me your copyrights, and I'll give you half the money I get for them? OK, if you don't want a publisher to look after the collection for you, then you can apply for membership of the PRS and MCPS (Mechanical Copyright Protection Society) and collect direct.

The PRS, with some exceptions that they will advise, will collect your royalties as licence fees from public performances and broadcasts and, after deducting running expenses, will pay them to you and any other member who has an interest in the work — say your co-writer, or me if you'd done the deal I offered a few sentences ago.

If you see a PRS sticker in your local pub or cafe, it means they have done the right thing and got a licence for the use of PRS members' music in their establishment. Ask the registrar for "Membership of The Performing Right Society", which will explain application procedures and criteria.

The Mechanical Copyright Protection Society licenses records, cassettes, etc, and the mechanical reproduction for broadcasting of its members works (say a tape made of your John Peel session). The money involved here has nothing to do with performance, it's purely a payment for converting your music into a recorded form. The MCPS pays out direct to writers unless they have a publisher, when it pays the whole lot to the publisher and relies on him to pay the writer(s). Drop them a line at (Contact Details).

There are no strict membership requirements as such, but MCPS makes its living by charging a commission on royalties collected. If you have one track on an album, unless it's a guaranteed monster, your being a member is unlikely to be economical for them. You can but ask. PRS and MCPS collect your foreign earnings from their equivalents in other countries, and this will (eventually) show up in your royalty statements.

What does a publisher do?



Quite often, sod all beyond filling in a few forms and sharing your money (see Martyn Ware's view in Issue 4). But there are good ones, and in some circumstances you will lose nothing by having one. For example, some European equivalents of the PRS pay out writer and publisher shares as separate items. Even if there wasn't a publisher, the writer wouldn't get that money. As far as PRS is concerned, it will pay out 12/12ths (= 100% in arcane and pleasantly vulgar fractions) to an unpublished writer, only splitting this where a publisher deal is done to a maximum of 6/12ths to the publisher. The PRS "norm" is 4/12ths publisher, 8/12ths writer(s). Where PRS is given money already split into writer/publisher shares by another collecting agency, it can only pass on to the writer the writer's share regardless of whether or not there is a publisher involved.

Library music publishers can offer a good writer a very healthy career, almost behind the scenes in a way. In return for you assigning the copyright to them (subject to the interest PRS takes in it as a requirement of your membership) they will record and produce your material, not for public sale, but for use by film makers, TV producers and soon for their soundtracks and background music.

A producer may ring up, for example, library music company KPM and say he needs music for such and such a type of project. They then fix up a date when KPM will do a presentation of stock music they think will meet the producer's needs. Royalties from any subsequent use will then be divvied up between publisher and writer according to the contract — usually a fairly stiff publishing share due to the production expenses involved.

If you have a commercial album out and licensed overseas, then a publisher can do a sub-publishing deal with a publisher local to the overseas record company who may collect and pay your mechanical royalties more quickly and effectively than might be done through MCPS.

Music publishing tends to be very specifically concerned with ownership of the copyright. It is, in contrast, quite normal for the author of a book to retain ownership of the copyright while the publisher publishes away merrily with no problem.

But whatever you may be told is 'usual' in the music biz, you are entitled to do whatever deal you like or can with whatever bit of your copyright you like or can. If a publishing deal is going to increase your royalty earnings and promote your work, then it's worth doing. Perhaps an administration deal whereby a publisher takes a small share of the royalties (15-20%) simply for protecting your work with his industrial muscle and thorough collecting will suit you better? MCPS may not always be able to persuade a record company to cough up mechanicals on time — perhaps you could do with someone to make a few threatening noises on your behalf?

You may do a deal for one piece at a time, or for all your work over a period of whatever rate you can negotiate, subject to the PRS publisher-maximum rule. You may care to seek advice from the British Academy of Songwriters, Composers and Authors at (Contact Details). This is a successor body to the old Songwriters Guild which had an excellent reversionary clause in its standard publishing contract, but otherwise did little for me other than advising I entered the Castlebar Song Contest or keeping me up to date with Lindsey de Paul's then current activities. I left it well before this now six-year-old reshuffle and amalgamation, so you and I shall investigate it together and see if it is worth a slice of the royalties for membership. I'd be glad to hear from anyone with experience of it — is it wally or is it good?

Can I set up a publishing company?



Yes. Bear in mind that PRS membership criteria are higher for publisher applications than writers. Running a company may change your tax situation, garages don't take company cheques etc, etc. Talk to your accountant — the real question is "is it worth forming a publishing company?"

How much of someone else's stuff can I use without having to pay?



Morally, none. Legally, if a judge considers it "a substantial part", then you're in trouble. Two notes might be a substantial part in some circumstances, 20 notes in another set of circumstances. The judge decides each case on its merits. You may accidentally and honestly write something the same as somebody else's. Theoretically, you can both hold copyright, but the fight will be about who did what first, and whether or not the other was consciously or subconsciously influenced. This is where you need to be able to demonstrate when you write your piece.

What do I do if I want to play someone else's stuff on a broadcast or on a cassette to flog at gigs?



On a broadcast, you must tell the producer who the composer and publisher are if you know the names. If you're not sure and the stuff is well known, the producer can probably check with the PRS who it is. Producers must have the information to fill in a programme return. The radio or TV station will pay the royalty — not you.

On a cassette, you must obtain permission from MCPS (assuming the writer and/or publisher is a member — if not, you should go direct and make your own deal) who will want to know how many you intend to make and sell, and will charge you in accordance with that. Don't worry, it won't bust you, and trying to avoid it could land you in serious trouble.

What do I have to do if I want to flog cassettes of my stuff at gigs?



As far as the copyright is concerned, nothing. It is yours to do with as you will. Just make sure you have the copyright claim on them for safety's sake, unless you have a publishing deal on that stuff. In which case you'd better ask the publisher; it's not your copyright now.

If I do a record, do I have to give them the publishing?



No. But if you get hassled you will need competent advice, management or legal, as there is a grey area here, and a lot of pressure can be put on an artist who is keen to get an album out. I would just remember that a worthwhile relationship with a record company is one in which they are as keen on doing the album as you are, and one in which they aren't going to piss you about for a few quid. If you have a sense of unease about a company you are considering doing business with, then in my experience you will regret going ahead with it more than you will regret letting it drop. A good record company won't give you a hard time over it, and is perfectly capable of making a fair profit on an album without putting you through a financial wringer. Deals made now can affect all the other, later stages — you've seen the law-suits.

How about the tape levy?



The White Paper (government proposals to be laid before the House of Commons) "Intellectual Property and Innovation", produced by the Department of Trade and Industry, April '86 (HMSO £6.70) follows on from the Green Paper (a consultative document) out out in February 1985 and subsequent submissions by interested parties.

The Green Paper said (2.4) "Copyright underpins the livelihood of creative workers and the viability of the industries based on their work". For example, me and my indie record company, the Eurythmics and RCA, or Bill Nelson and his back garden, plus the guy who did the sleeve, the printers, the pressing plant, the record shops and so on, not forgetting the studios, who have been moaning for some time about the lack of return on capital invested, or the outboard hire companies, or the engineers and producers. A lot of people make a living getting a tune to the public, and usually, not an excessive one (the living, not the tune).

The Green Paper goes on: "An essential element of copyright is the right to take action against unauthorised reproduction of the subject of the copyright". That is, if I catch some worm, I can nail him. But, on again in 2.6: "...the legal right cannot in practice be enforced in relation to copying carried out in the home. Consequently, while home audio and video recorders have become commonplace, their use has generated virtually no income for the copyright holders whose work is being enjoyed."

In fact it is quite clear that incomes have actually been reduced — and while this may have trimmed some exorbitant fat off the majors, it is pushing the middle range artist and the indies, arguably the most fertile and innovative musical ground, further and further back towards break-even point. This is why I get a pretty minimal recording budget, and why you see some surprising artists without recording contracts. If it continues without some sort of compensation, this middle range will be squeezed out of existence while the majors bash on with hyped-up, one-off chart shots and MOR that will sell enough to make money in spite of home-taping. Pessimistic and cynical perhaps, but where will the creative home tapist take his stuff then?

But onto the White Paper. After all the submissions, arguments, and probably tape industry free lunches, the government have concluded that (6.6):

"(a) Copyright owners and performers should be remunerated for the use of their material and performance by those who tape them at home to the prejudice of the legitimate interests of copyright owners;

(b) there is no realistic alternative to a compulsory levy on blank recording tape as a means of providing such remuneration; and (c) any levy scheme should give the public an entitlement to record for private purposes."

Read that last bit twice: an important deal is being proposed. It is that in exchange for a piddling sum (to a maximum of 10% of the total annual retail sales) home tapists will get a right to record stuff. Currently, whatever the anti-levy tape manufacturers may claim, they have no legal or moral right to record someone else's material.

Let's get over the tear-jerker argument right away as well. The blind and visually handicapped who (these days, my Grandpa never did) need tape, will be exempted — they won't pay it, and the retailer will claim the rebate from the proposed new collection and distribution society.

Levy propsals only cover "blank audio compact cassettes of 35 minutes or more total playing time". Reel to reel is not covered, and neither is the ideal demo length C-15. The purpose is not to clobber the creative, but to extract some fair-do's from the punters. Or, you can have the golden eggs so long as you feed the goose. Can any legit muso complain about that? Especially when cassettes are working expenses and tax-deductible anyway.

The various papers concerned can be obtained from HMSO, (Contact Details), or see your Yellow Pages.


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Marlin Sidewinder Six String

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What It All Means


Making Music - Copyright: Track Record Publishing Ltd, Nexus Media Ltd.

 

Making Music - Sep 1986

Feature by Adrian Legg

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> Marlin Sidewinder Six String...

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> What It All Means


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