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The Ask Marcy column is intended to aid you and should not be considered legal counsel. Please contact an attorney before conducting any business venture - You may e-mail general music related legal questions to AskMarcy@UrbanBeatMovement.com
"Power Of Attorney" sounds frightful, and it can be. It means that you are expressly (i.e., in writing) allowing another person to sign agreements on your behalf under certain limited circumstances that will be enumerated in either a document called a "Power of Attorney" or a provision in a contract that gives that person the power of attorney (or makes them your"attorney-in-fact"). Let's look at what that means in the context of a management agreement. Generally, a personal manager is requesting that you, the artist, allow her to sign certain contracts on your behalf in the event that you are unavailable to do so (like, you're on the road or in the studio recording). Even though the manager may want the right to enter into all sorts of agreements on your behalf, there are obviously certain agreements where this is inappropriate --principally, long-term agreements, such as recording contracts and music publishing agreements. On the other hand, should a contract for additional concert dates be received by the manager when an artist is on tour and unavailable, it may be to your advantage to permit the manager to execute (i.e., sign) the contract on your behalf. So, let's say that David Letterman calls your manager and, because Jay Z got the flu, Letterman wants you to appear that night on his show instead. Letterman will fly you out first class. You're on the tour bus in Abilene, TX, but Letterman's people need to have their "live appearance contract" signed within 1/2 hour, or you're OUT. In this type of scenario, and others like it, it's a good idea for your manager to have a Power of Attorney to be able to sign Letterman's contract for you. Generally, the Power of Attorney should be limited to certain necessary scenarios. The following is an example of how a "all-inclusive" Power of Attorney clause might read in a Management Agreement: "During the Term of this Agreement, Manager is irrevocably appointed by Artist as Artist's true and lawful attorney-in-fact to sign, make, execute and deliver in Artist's name, documents and contracts for Artist's services, talents and/or artistic, literary and musical materials (provided, however, that in no event shall Manager execute on Artist's behalf any agreements relating to Artist's exclusive songwriting or recording services) only if Artist is not reasonably available to do so (unless Artist waives this condition in any particular instance) and only with Artist's prior consent in each instance, which shall not be unreasonably withheld. Or, you could see a provision like this: "I hereby authorize Manager to execute for me in my name and/or on my behalf routine "one-night'" AFof M (American Federation of Musicians) agreements for live performances by me in the continental United States, provided that such agreements are identical to the form already signed in the past by me for such performances and only if I am consistently unavailable to execute such agreements ("unavailability" as used herein means that Manager diligently but unsuccessfully endeavored to have me execute such agreements)." Or, the watered-down version of the above could simply read like this: "Manager's power of attorney shall be expressly limited to live appearance/performance "one-nighters"; or a series of live appearance/performance "one-nighters". " Or, WATCH OUT...it could contain a term like this: "I hereby authorize Manager to collect and receive sums as well as endorse my name to all checks payable to me for my services, talents and literary and artistic materials and retain therefrom all sums owed to Manager." In the above provision, you are giving the Manager the right to endorse your checks, take the money from the checks and retain her commission without going through you. Unless you have supreme confidence in this person and she is your business manager, you should be wary of this type of provision! Many managers may ask for this right, however, so be aware. So, how do you protect yourself from such a provision? Take a look at the following and make sure at least something like this is in your management agreement: "Other than as expressly stated in this agreement, you are neither authorized nor permitted to execute any agreements on my behalf except when you are expressly authorized in writing to do so by me. Furthermore, you are neither authorized nor permitted to collect or receive any monies or other considerations for me or endorse checks or other negotiable instruments payable to me or on my behalf." There you go! The point is that how much or how little power, or rights, you give to your Manager is up to you. And, you know the old saying.... "Less is more". Well, more for YOU, anyway.
Short answer: No. No, you won't get
paid if someone steals your song and uses it without your permission.
That's the point of stealing it - to use it and not pay anyone!
But you didn't think you'd get away with a short answer, now did
you? Now, onto 2): let's say an artist took the chorus of your song, wrote new verses, released the new song as completely his own, and the new song was played on the radio. Now, THAT the artist CANNOT do without written permission from you. Why? Because taking a portion of one person's copyrighted song and using it in a new song without the first person's permission does not fall under the "compulsory mechanical license" provision - that new song combining your old stuff and his new stuff is considered a "derivative work" - a work that has been adapted from, or has transformed, another original work. No can do without written permission! Therefore, voila, copyright infringement! And no payment! Now, let's take this one step further: Remember
I mentioned that this new adapted "derivative work" was
played on the radio? You get money from that airplay from your performing
rights society (PRO) like ASCAP, BMI or SESAC because their job
is to track the number of times your song plays on the radio and
pay you for it. Do you think that nice thieving artist gave his
new song the same name as your original song and then was kind enough
to register the new song in both your names with his PRO so you
can receive your legitimate share of public performance royalties
for airplay of that new song? Nope. So, you won't receive anything
from your PRO because they will never know it's your chorus in his
new song! What is BDS encoding and what is its purpose? BDS stands for Broadcast Data Systems. It is a company that tracks and monitors radio airplay of songs on over one thousand radio stations across the country and such tracking is used to determine chart positions in radio reporting magazines, etc. Billboard uses BDS for the airplay portion of their music charts. BDS tracks over 1 million songs per week. It also monitors stations in Canada and Puerto Rico. Users of the information provided by BDS are: record labels, radio programmers, artist managers, music supervisors for movies, publishers, music licensing companies, retail store managers, independent promoters, publicists - virtually every music industry professional can find BDS's monitoring information useful to some degree. It also monitors song airplay for ASCAP and SESAC, which gives those performing rights societies a bigger sampling picture on who is playing what song and when, and subsequently, allows their songwriter/publisher members to reap more performance royalties. BDS's parent company, VNU, operates in Europe as well for monitoring airplay for royalty tracking purposes. BDS also works hand-in-hand with SoundScan (the organization that tracks CD sales at the retail level). If you want your song to be tracked it must be encoded with BDS encoding system. i.e., "fingerprint" - you can send your material to BDS.... for a price, of course! for more info : http://www.bdsonline.com/bds/bds.shtml
Clearing samples is a long and lonely process if you do it yourself; however, there are sample clearing houses (see list below) which, for a price, will clear the samples for you. It can be costly, however, so here's how you can do it yourself Samples
generally consist of two (2) distinct elements that can be copyrighted:
In
order to legally use the sample, you MUST get permission from the
copyright owners of the both the sound recording AND the song itself.
Often, the copyright owners of these two elements are NOT the same
person or entity. In the majority of cases, the sound recording
copyright owner is the record label and the song copyright owner
can either be the recording artist, a songwriter from whom the recording
artist got the song, and/or a publishing company. First, determine who are the owners of these two copyrightable elements. Part
One: BE AWARE: After you negotiate the price for the sound recording license, the record label may request, or insist upon, partial, or complete, copyright ownership in your new sound recording as well. If you refuse, then the record label is completely within its rights to deny you usage of their copyrighted sound recording. BE AWARE II: Don’t think that just because you are sampling a Beethoven record, you’re in the clear – after all, he’s been dead a long, long time and his music is in the public domain (which means its up for grabs from anyone who wishes to use it). BUT - Someone owns the sound recording of that Beethoven record you’re sampling, and you STILL need to get permission to use it! BE AWARE III: How do you get around paying for the sound recording license? Easy. If you are able to do so, you may identically reproduce those actual sounds that you wish to sample yourself and make your own, separate sound recording. Then, YOU own that new sound recording, and you can legally sample your own sound recording, of course. But you still must complete Part Two….. Part
Two: The good news with THIS part of your clearance expedition is this: unlike in the case of the record label, the song’s copyright owner CANNOT stop you from covering the song in your new song/sound recording; under the Copyright Act, once a song has been distributed to the public, anyone is free to cover that song. Your only responsibility is payment to the song’s copyright owner of that eight cents per song per CD (see above). The not-so-bad news is: you cannot get around this one… you must get a mechanical license for the song itself. There you go! Sample, I mean, simple, huh? OK, stop groaning and call a sample clearance house! Here’s a list I obtained in one minute on the Internet (but I cannot personally vouch for any of them): BZ/
Rights and Permissions Inc. Clearance
Consultants Copyright
Clearinghouse,Inc. Copyright
Music and Visuals Diamond
Time LTD.
73 Spring st., Suite 504, New York,NY 10012 Essex
Entertainment Inc. Evan
M. Greenspan Inc. Media
Rights Inc. Diane
Prentice MusicClearance Inc. SIGNATURE
SOUND, INC. Sound
Thinking
I
teach a ten week course on the publishing industry, so I'll try
to boil it down here to a few key concepts:
The new Jackie Chan flick comes out - it's a huge success. It's
publicly performed (played) in movie theatres all over the world.
The publisher then receives, in addition to the above-stated sychronization
licensing fee, the synchronization public performance royalties
(i.e., "synch royalties") for overseas theatrical performances
of the song in the movie. Then, when HBO and Cinemax and CBS broadcast
the movie, the publisher will receive 'synch royalties' for those
TV performances as well. And, lo and behold, Ford absolutely has
to have this hit song for all those new Ford Humungus SUV commercials
- once again, the publisher will negotiate a synch license with
the ad agency, get a fee, and once again, the publisher will reap
synch royalties as a result of the Ford ads being played over and
over again on TV. Also, by the way, the recording artist plays the
song live on Jay Leno and the Today Show - more public performance
income! And it's dowloaded from iTunes, and streamed over hundreds
of Internet radio stations, and....well, you get the picture. Sometimes,
the songwriter and the publisher are one and the same; other times,
the original songwriter may transfer some or all of his or her copyrights
to a music publishing company. So, why go with a publisher? It depends
on how much time and effort an individual songwriter can spend on
properly exploiting (remember, in publishing that's a GOOD word)
his or her songs. Also, it may be hard to collect and keep track
of all the revenue streams created by a writer's hit song. Another
key publishing function is administration: a publishing company
collects the money, keeps the books, goes after copyright infringers,
negotiates licenses, and does myriad other administrative functions
to maximize income on a musical composition.
As
of the date of this writing, you cannot copyright songs or sound
recordings over the Internet. You can, however, either fill in the
SR and PA forms online and then print them out (please use a laser
printer and good quality paper), or download (in .pdf) those forms
with instructions on how to properly fill them out. You must send
the Copyright Office a check in the amount of $30.00 along with
EACH application and a copy or copies of your work(s). Note: you will download the forms as individual pages - then, you should copy the forms to "two-sided" format, i.e., page should appear as the other side of page one instead of submitting page one and page two as two separate pages. Note: Your effective date of registration is the date upon which the Copyright Office receives your completed application and your $30.00 fee along with your copy or copies of the works to be registered for copyright. This date is very important to you. Therefore, you should send each application for registration certified mail, return receipt request. That way, when you get the signed green card back, you will have a record of the date your application was received in the Copyright Office.
Five Requirements Must Be Satisfied to copyright a collection: 1. THE SONGS MUST BE UNPUBLISHED. In other words, they must not have been offered to the public for sale. 2. THE SAME PARTY MUST OWN ALL RIGHTS IN THE SONGS AND IN THE COLLECTION AS A WHOLE. This means that you have not signed over one or more of your copyright rights to another person or entity. 3. THE SONGS you are registering MUST BE BY THE SAME AUTHOR OR AT LEAST ONE AUTHOR MUST BE COMMON TO EACH WORK. So, as long as you are at least the co-author of each of the works being registered, you may register the songs as a collection. 4. SONGS MUST BE ASSEMBLED IN AN ORDERLY FORM (on CD or cassette, specify the number of songs and put titles in order that the songs appear on the CD). 5. SONGS MUST BE IDENTIFIED BY A SINGLE TITLE , e.g., "Marcy's Greatest Hits of 2003 Volume 1". If so, how can you sell one song without selling the whole group of songs? Registering
your songs as a collection will still allow you to license one individual
song on the collection to any type of music user (e.g., movie, TV
show, recording artist). The main difference in registering songs
individually and registering a collection of songs lies in the way
the songs are indexed in the Library of Congress. Only the title
is registered in the Copyright Office if you copyright your songs
as a collection. Is sending my songs in the mail to myself an acceptable alternative to copyrighting my material? (why or why not) You can do that, but all that does is show alternate proof that you wrote that song at that particular time. Understand that you are 'copyrighted' as soon as you put pen to paper or voice to tape...however, you don't get the benefits of the Copyright Act if you don't register...i.e., You cannot sue for infringement under the copyright law if you do not register. The conclusive proof is registration, so it does SOME good to mail yourself your song, but not much. If someone else has sent in a copyright registration on the song you mailed to yourself, his registration trumps your mailed song, and you have to prove fraud, which is very hard to do ….and costly.
Generally,
no, if you change your name you cannot get out of a contract that
you signed under a band name, because most contracts join to the
contract band members individually AS WELL AS the band as a whole
(most of the time, the contract actually says that). In any case,
in all likelihood there is no judge in the USA who will let you
out of a contract just because you changed the name of the band....can
you imagine how easy that would make it for bands that later on
decided they didn't want to fulfill the contract? Marcy Rauer Wagman
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ASK
MARCY(Free legal advice!)
What does "Power of Attorney" mean in a management contract?
.
If I own a copyright, why should I worry about publishing. Won't
I still get paid if someone tries to steals my song?
Clearing
and using samples
What
is Publishing and why is it so important?
Can I copyright songs over the Internet?
Is it possible to copyright multiple songs on one copyright form?
If
I'm in a group and we sign a contract, if we change our name, can
we get out of the contract?
The
Law Offices of Marcy Rauer Wagman, Esq.