3 smart ways musicians can protect their work

Apr 13, 2017

I am an entertainment attorney specializing in music, television, film and video, and have assisted countless artists in navigating the legal aspects of the music business. My new book, The 11 Contracts that Every Artist, Songwriter and Producer Should Know is an in-depth guide to contracts that new and emerging artists are most likely to encounter, paired with professional commentary.

This blog briefly discusses the book and offers some tips that are discussed in more detail in The 11 Contracts.

In the book, I present sample agreements for various deal in the music business and then break down the nuances of both the legal and business sides of the arrangement.

The book is not only for artists and other creators but for managers, indie labels, music business students, attorneys, and anyone who would like a leg up in negotiating the best possible deal.

Online access to the following video content is included with the purchase of The 11 Contracts including in-depth conversations about music clearances and licensing and analysis of management, artist, publishing and producer agreements, plus the art of hiring a music attorney, and more.

1. Join a Performance Rights Organization (PRO) and Collect Money for Your Live Performances

Any songwriter should join one of the U.S. Performance Rights Organizations: BMI, ASCAP, SESAC. All of them collect money for performances of songs on radio, TV, the Internet and physical venues and then distributes those monies to songwriters and their representatives, music publishers.

Unless you are a member of one of the three PROS you will not get paid for live performances of your songs. The fees for joining these PROs are nominal and SESAC is free.

Other perks of membership include:

  • Face to face feedback on your music
  • Networking opportunities with producers, artists, and other songwriters
  • Showcase opportunities with music industry executives in the audience
  • Direct payment for live performances of your music

Check out the following webpages for more info: BMI Live, ASCAP OnStage and SESAC Live Performance

A client of mine made over $1250 from one calendar quarter playing her music at live gigs using SESAC’s live performance program.

2. If you write with another songwriter or producer – prepare and sign a “split sheet”

A split sheet states who owns what percentage of a song and sets forth the credit each person should receive. A split sheet should be created for each and every song that was created by more than one person and should be filled out and signed by all the writers before ever shopping it to a third party or trying to license it for placements.

Every day around the world, songwriters collaborate on songs and never clarify who wrote what. But, if you are ever fortunate enough to license your song for a commercial, movie, or TV show, you may find yourself fighting over who receives what percentage of the revenues generated from your song.

Many songwriters and artists just want to create great music and may feel uncomfortable introducing a split sheet and dividing up shares of publishing when they’re trying to be creative. However, it’s a necessary part of the songwriting process.

Have a meeting about split sheets prior to hitting the studio. This way everyone understands that it’s not personal, it’s just business. Doing this makes everyone feel as though their interests are protected, which can enhance creativity rather than inhibiting it.

Split sheets should contain the following information:

  • The name of each writer
  • Percent of ownership. This is key. If the song makes money, this will determine how much each writer will receive
  • Credit for each writer, including who wrote the lyrics and who composed the underlying music
  • Everyone’s signature

A sample split sheet is included in 11 Contracts that Every Artist, Songwriter and Producer Should Know.

3. Register your songs and master with the U.S. Copyright Office

Registration is not a prerequisite for copyright protection. Under the Copyright Act of 1976, a copyright comes into existence as soon as a work is fixed in a tangible medium of expression, and registration is not a condition of copyright protection.

However, registration provides crucial benefits to copyright owners. Those benefits, which are set forth at the U.S. Copyright Office’s website, include the following:

  • Registration establishes a public record of the copyright claim.
  • Before an infringement suit may be filed in court, registration is necessary for works of U.S. origin.
  • If made before or within five years of publication, registration will establish prima facie evidence in court.
  • If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
  • Registration allows the owner of the copyright to record the registration with the U.S. Customs Service for protection against the importation of infringing copies.

Of the reasons to register set forth above, the most important are that a copyright owner (i) cannot start a lawsuit for copyright infringement before registering, and (ii) cannot secure statutory damages or attorneys’ fees without registering.

With respect to (ii), the Copyright Act provides for statutory damages of up to $150,000 per infringement and attorneys fees. It is crucial that if the work has been published (that is released for sale), the registration occurs prior to any infringement.

Otherwise, the plaintiff must prove actual damages, which can be difficult to quantify, or may equal a negligible amount unless the defendant earned a lot of money from the infringing work.

Note that the only way to secure the benefits of copyright registration is to register with the U.S. Copyright Office. These benefits, contrary to a popular myth, cannot be obtained by sending a copy of your song or master to yourself (even by certified or registered mail).

You can find an application and instructions on how to apply here. Additional details on fees and filing for more than one work in a single application are offered in the 11 Contracts book.

Steve Gordon is an entertainment attorney with over 20 years of experience. He served as an attorney at a law firm representing Atlantic and Elektra Records, as in-house counsel for a Hollywood movie studio, and served as Director of Business Affairs for Sony Music for more than 10 years. He currently manages his own law firm in Manhattan.

Steve Gordon

Steve Gordon is an entertainment attorney with over 20 years of experience. He currently manages his own law firm in Manhattan.