Q&A: Bev Green

This is the second of two columns featuring music attorney Bev Green, a veteran entertainment lawyer in the San Francisco area who practices at the firm
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This is the second of two columns featuring music attorney Bev Green, a veteran entertainment lawyer in the San Francisco area who practices at the firm of Green and Green (www.musiclawyer.com). Besides representing a who's who of musical talent, Green has negotiated licensing deals involving artists such as Destiny's Child, Will Smith, and Alan Jackson. She has also been active in licensing material for new-media projects such as Hit Clips, the micro music player for kids from Tiger Electronics/Hasbro, and various musical products from Fisher-Price.

In part 1 of my interview with Green (see “Music Business Insider: Q&A: Bev Green” in the May 2007 issue of EM), she offered some general legal advice for musicians. This time, she focuses on the legal issues that songwriters and composers face.

Like bands and artists, songwriters and composers need to be careful about signing agreements, correct?

Yes. Generally, I would say don't give up your music copyrights (called the publishing) — at least not without very careful advice and contract negotiations.

Is that the writer's share of the publishing that you're referring to?

No, the publishing is the ownership and control of all of the song. It's a little bit confusing because the person who writes the song — that's the author — is the copyright owner to begin with. The copyright law was specifically written to protect writers so they can't transfer their ownership, or publishing, without a written agreement signed by them. Otherwise, it would be claimed to be happening all the time. The thing is that in that written agreement, a writer could actually give up the copyright to their song and not have in that contract a contractual right to a writer royalty, the so-called writer's share. BMI and ASCAP arbitrarily divide the royalties into a writer's share and a publisher's share. If you're the writer-publisher, you keep the whole thing. But even if you've signed over all of your publishing and you didn't get any writer royalty, you can still get your public performance fees from BMI or ASCAP (if you join one of them), because they insist on paying the writer directly, to save you from totally screwing yourself over.

Would this count in a broadcast situation? If you wrote music for, say, a TV network and signed away your writer's share, would you still be eligible for payments from ASCAP or BMI?

Actually, I've seen that situation, because I do represent a lot of people who write for TV and film. If you're writing original music for a show, the production company will usually want a contract with you where they acquire all the publishing [rights] in the music. But they will usually let you keep the writer's share of at least the performing rights, which you would get some of from television performance but not from motion picture or theater performance — at least not in the U.S. — because of the way the law has developed.

If you do a composition that's a “work made for hire,” do you give up a lot of rights?

Yes, you give up entirely the ownership of the copyright from the inception of the creation of the work. In other words, the employer becomes the legal author. You also give up your possible future rights to terminate an assignment and even give up the right to have your name listed on the copyright registration as the legal author. Any rights you may want, such as credits or royalties, you will have to negotiate for and include in the written contract. Not all types of work can be considered as work made for hire. It's a complex subject, but suffice it to say that for a musical work specially commissioned for use in a motion picture or TV show to be considered as a work made for hire, there would need to be a signed contract stating that that's the case (unless the work is done in a true employment situation).

Would you still be entitled to ASCAP or BMI monies?

Yes. Even though the publisher is considered to be the author for copyright purposes, they are legally required to identify the actual author when they put in their registrations with ASCAP and BMI, and the composer would get paid directly.

So if a production company shoves a contract in your face, you would recommend showing it to an attorney first — even if you don't have one yet?

Right. Whenever you're looking at any contracts that have to do with your copyrights, you want to be extremely careful because that's the core of your whole business: copyright — your intellectual property.

Let's talk about the process of copyrighting a song or composition. I gather that it's not as simple as some people think.

Musicians and songwriters sometimes really mess up the copyright thing. Because even though it's a short form, you have to figure out what the form is that you're using. You have to figure out whether there are going to be coauthors on there, who owns the copyrights, whether it's going to be a work made for hire, and whether it can even be a work made for hire legally. It's really important that songwriters and composers register their copyrights, or artists and producers their sound recordings — whatever — with the U.S. Copyright Office at the Library of Congress and not with some online scheme. Anybody (except, of course, a lawyer) who tells you that they can register your copyright for you is scamming you.

You can save money by copyrighting a group of songs together. But is there anything to watch out for in that instance?

The mistake that people make when they copyright a collection of works themselves is that they don't list all the titles. And when you search the Copyright Office records or are trying to prove that you have a registered copyright in order to enforce your rights in court, you won't find that title registered. If a bunch of songs are registered under a single title, it could cause huge legal problems. There's a form called Form CON [a continuation sheet] that is available online just like all the other copyright forms [go to www.copyright.gov/forms href="http://www.copyright.gov/forms"]. On that form you can list the additional titles, and they'll be covered. Be sure to do that; so many people just give the whole collection one name like “My Song Collection, v. 1.” Great. What was in there? And it becomes an evidentiary issue of fact. And it can really sideline your lawsuit if you're trying to enforce your copyright. Also, the Copyright Office has just announced plans for rate changes that are scheduled to go into effect sometime between October 1, 2007, and January 1, 2008, that will affect the cost of registering additional titles in collections. It will cost an extra $1 for each title on an electronic filing (electronic filing is supposed to start around July 1, 2007) and $3 more for each title on a paper application. Basic electronic filing fees are supposed to be $35, while paper filing will remain $45.

Let's say that your music has been properly copyrighted, and a producer offers to produce your music at some point. You still need to work out an agreement to protect yourself, right?

Yes, because the producer may actually be a co-owner of your copyrights with you. If you don't want that to be the case, you've got to have a written agreement in which he or she gives that up but gets other certain rights.

The producer gets that copyright — that is, the co-ownership of the sound recording — by default?

Possibly — as an author of the sound recording. Because if somebody is actively creating, not just running the machine, they could be entitled to co-ownership of the copyright. Engineers probably wouldn't be. But who draws the definitive line between an engineer and a producer? It's certainly a gray area that needs to be clarified through a written agreement.

Clearly there are issues regarding the copyright of sound recordings. But what about the copyright of compositions?

With the composition you can get into problems when a songwriter brings the song into the band, and then, say, the drummer does a little drum thing, the rhythm section guys do a little arrangement, and the piano guy does his arrangement. Are they then coauthors of the song? It's actually a matter of intent. According to copyright law, their contribution doesn't have to be substantial; it just has to be more than nominal. Songwriters also have to be careful about producers claiming some of their song copyrights, as in when the producer helps the artist work out the songs in the studio, unless, of course, their intention is to share the song copyrights. It could be the producer or the singer who says, “Hey, it would sound better if I sang these words differently. Let's change them around.” Something important about copyright law is that unless there's a written agreement, coauthors share equally [rather than] in proportion to their contribution. Without an agreement, you could write all the music and most of the words, and somebody else, whose only contribution was helping with the words, could own 50 percent of the words and music of the total song.

Mike Levine is an EM senior editor.