Publishing Rights Are More Important Than Ever For DIY Bands
Posted on June 23, 2014
June 23, 2014
by Joel Tannenbaum
What’s up, punk.
You know a lot about writing songs, and recording them, and maybe even releasing in them in some physical format, or maybe you’re lucky enough to have someone who does that for you. The point of this essay is to get you to think about another facet of the songs you write and record: their existence as intellectual property, i.e. as ideas that you own. As intellectual property, your songs are covered under two categories – publishing and copyright. The former has to do with the songs as you wrote them (as a collection of words and melodies) and the latter has to do with the songs as you recorded them (a collection of sounds, captured through recording).
Confused yet? Think of it this way. Did you have to read Plato’s “Allegory of the Cave” in school? It’s kind of like that. Publishing refers to the idea of the song you wrote, its underlying structure that can be picked up and used by anyone. Copyright refers to a specific manifestation of it, a specific recording.
Before we go any further, you should probably decide whether this is something you even approve of at all or want to participate in, period? Everyone interprets DIY ethics differently, as Paul Blest pointed out very recently on this very website. Maybe, by your estimation, anything that has to do with ownership, statutory law, the federal government, etc., is total bullshit that should be kept as far away from the DIY scene as possible. If that’s your view, awesome. Good day to you. If, on the other hand, you see mastering the thorny nest of publishing and copyright is something that DIY artists can and should do to empower and protect themselves and their communities, I hope you’ll keep reading.
Publishing songs you wrote means protecting them as intellectual property. Copyrighting recordings you made means the same thing. But when you publish something, you are protecting the idea of the song, in whatever form it takes. When you copyright something, you are protecting a specific recording of the song.
Copyrighting essentially happens automatically. Well, not quite, but let’s leave that for a moment. Publishing a song requires you to first register yourself as a writer with a performing rights organization, and then register your individual songs. All this is free. There are three performing rights organizations in the US – BMI, ASCAP and SESAC. From the perspective of a small-time person, which is what we all are, they are all basically the same. I would recommend you use BMI, just for convenience, since that’s what I use and understand the best, and I’m the person writing this essay. But by all means, do some research. Don’t just rely on my opinion.
In order to register your songs, you are going to need to decide who wrote them. This is not as obvious as it sounds. Back in the nineteenth century when these laws were devised, a song was considered to be the words and the primary melody. If one person wrote the words and another wrote the melody, then it was a 50/50 split. If one person wrote the words and the melody, they were the sole author. This system was devised when music sales basically just meant sheet music, and sometimes it can be tricky to apply now.
So you are in a band. You have to look at how your band works and decide what an honest representation of the writing process is. I can tell you that in my dumb bands, we always take it as whoever came up with the words and the chord progressions. So a song like “Lighters,” where I wrote the words and the chords, that makes me the sole writer. A song like “Martin,” where Sean wrote the words and Brian wrote the chords, breaks down 50/50. But that’s how we did it. Other bands are different. It is important to keep in mind though that, in a legal sense, writing and arrangement are two different things. So if you bring a song to the band and your drummer says, hey what if we put this drumbeat here, and you’re like, yeah, strictly speaking that would be considered a contribution to the arrangement, not the writing. Some bands ignore this principle and split everything evenly. I can see the logic of this, but it’s important to remember that when you credit someone as a co-writer on a song, you are giving them partial ownership of the song. That can be tricky in unforeseen ways. Anyway, ultimately it’s up to you to decide whether you are the sole author of your bands’ songs, or all three (or four, or five) of you are equal, or if it varies from song to song.
So once you’ve done that, and you’ve registered with a PRO, you go online and tell the PRO about your songs – what they are called, who wrote them in what percentage, and a few other basic details. It’s pretty easy. It will assign each song a number. You can log in and look at them whenever.
Now here’s the tricky part: PROs divide the total rights into two equal parts: a writer’s share and a publisher’s share. There is 100 percent writer’s share and 100 percent publisher’s share. This is because of the continuing existence of this thing called publishing companies, that sometimes actually help songwriters but mostly are just yet another way for business people to take advantage of creative people. The point is that when you register a song, the PRO will want to know how to divvy up both the writer’s share and the publisher’s share. Now, if you want, you can just have no publisher, in which case the publishing share reverts to the writer. Or you can spend $150 to start your own publishing company, through the PRO. This can have advantages in some instances, like when it comes to dealing with licensing companies. (More on that later.) But for the most part, right now you are probably better off just making the publisher share go to the writer, you.
Sometimes an independent label will also start its own publishing company. The label will ask all the bands whose records they put out to register their songs with them as the writers and their publishing company as the publisher. In practice, this means that when the PRO collects, say, $20 total on behalf of a few of the band’s songs, half of it goes to the publishing company. In theory this is advantageous if the label’s publishing company is out there pushing the songs to radio stations or whatever, but in practice, it is just an extra revenue stream for the label. Then there’s the matter of *real* publishing companies, but for now that’s a ways off.
Once you and your songs are registered, different things can happen.
Back in the day, publishing royalties meant this: your songs got played on the radio (or maybe the TV) and you got paid, because the radio station or TV station has to pay money to use songs that are published. Most stations had a blanket license with all three PROs that allowed them to pay a flat fee and use whatever they wanted. The PRO would then, in theory, look at all the publishing rights holders whose songs got played how many times, and divide up the fees accordingly. So if “Spindle” accounted for .001% of all the songs played on the radio in the USA that month, and BMI collected a total of $2 million in license fees, then as the author of “Spindle,” I got paid .001% of $2 million. These are hypothetical numbers. In practice, none of us ever got paid more than a few dollars at a time. Somewhere out there, there were bands like Green Day who were getting songs played on MTV and in commercials, and getting larger publishing royalties because of that, but we didn’t know them, and anyway they were bad because they were on major labels, or whatever we all used to say/think back then.
But that was back when people still bought CDs, and gas cost like $1 a gallon, so bands actually got by selling records and touring. As you know, a lot has changed.
Now publishing royalties have expanded way beyond radio, and licensing opportunities (somebody using your song as part of the background to something) have become way more varied and accessible. This makes sense if you think about it, with a billion cable channels, YouTube and everything else, there is just way more video content being produced that requires music, and mostly on relatively small budgets that require affordable music. So as with everything else, there is less money to go around, but your odds of getting some of it as an independent artist are higher. Before we talk about how to do that, let’s touch on copyright:
Again, publishing refers to the idea of a song. Copyright refers to a specific recording of the song.
Now let’s just assume that you are the sole author of a song by your band, say it’s called “Bad Hammock.” You sat in your bedroom at your parents’ house and plunked away on an unplugged Fender Squier until you had the words, the melody and the accompanying chord progressions just the way you wanted them, while your parents argued downstairs about how they were gonna get divorced, or send you to Outward Bound, or whatever. You then went into a studio and recorded it with the other two members of your band, let’s call them Gershom and Lilac. When it comes to publishing, you own the publishing rights. But when it comes to the copyright on the recording of the song, you, Gershom and Lilac own equal shares of the song. (Unless you made them sign something saying you own the copyright, but you wouldn’t do that, because that is mean and greedy.)
So let’s say that particular recording of “Bad Hammock” generates $57 worth of publishing revenues and $57 worth of copyright (called mechanical) revenues, after the PRO and whoever else has taken their cut. You would get a total of $76 (the whole publishing cut plus a third of the mechanical) whereas your bandmates would each get $19. Change the publishing percentages around and the numbers come out different, etc.
Publishing and mechanical (copyright) royalties come from a variety of sources: radio, streaming (Spotify, Pandora, etc.), YouTube. These all pay pathetically poorly, like fractions of a cent per play, so don’t get your hopes up about those. Where more substantial money comes in is licensing. Licensing, for your purposes, is when someone who makes video or internet content of some kind – a commercial, a TV show, a film, a skate video, basically anything – and wants music for it. The people who place music in these things are called music supervisors, and they get music in a variety of ways, depending on their budget and how personally involved they are in a project. They might be like, “Fuck, this ESPN snowboard video was supposed to be done two days ago, and the producer told me to get 30 seconds of music that ‘sounds like snowboarding’ and I only have a $200 budget!“ or they might be like "This independent film is my life’s work and I need the perfect song for the part with the dog’s funeral and I’m going to spend six months listening to every weird indie band on Spotify trying to find the perfect thing!” or “We are in negotiation with Rihanna to record a cover of “Eye of the Tiger” for Transformers IV.” In short, how these people go about selecting music for licensing varies greatly according to time, money and commitment.
As you can probably guess, bands like Plow United, or yours, are pretty near the bottom of this food chain. But that’s fine; there’s a lot going on down at the bottom of the food chain nowadays.
So, how do bands like ours get placements that we get paid for? Well, there are two ways: through library services and through licensing agencies. Library services basically curate large collections of music that they’ve pre-cleared and organized (using metadata “tags” and such) so that music supervisors can go in, find what they need, pay a set fee and get it with all the paperwork in order already. Licensing agencies (or song “pushers”) have rosters of artists that they push to music supervisors on shows. The former is easier to get to than the latter. Licensing agencies are more often than not individuals who have built up relationships with music supervisors and approach them with caches of songs. Music supervisors will send out emails saying things like, “Hey, new season of True Blood. I need music that sounds aggressive yet atmospheric, with hints of…blah blah.” The song pusher will then say “I’ve got just the thing! Listen to this!”
But both can be subjected to what I call the smell test. The smell test is a good rule to live by in general in the music business, but it is vital when it comes to licensing: No money up front and non-exclusive. There are exceptions to both, but they are very rare. Unfortunately, ever since the music industry mutated in the early 2000s, a new business model has sprung up of fake artist services that promise all sorts of licensing but in reality their business model is basically just skimming money from artists who want to do various things but have no idea how to do them. The tried and true way to avoid them is to just hit “delete” on anyone offering you a service that requires you to pay up front. Again, there are exceptions, but they are rare. And also, at this level of the game, anyone who wants you to sign anything giving them exclusive rights to push your songs is to be avoided. This is less frequent but when it occurs, it is much more dangerous than just some guy in a sweater trying to get $50 out of you. Songwriters can be really hurt by these deals. The exceptions to this rule come at a higher level of success. If in five years you have sold a ton of records and traveled all over the world, it might make sense for you to sign with a publishing/licensing company. But for now, avoid anything using the word “exclusive” like it is the fucking black death.
There are lots of licensing companies that deal with smaller artists, and some are bullshit and some are good. For the moment I’m pretty okay with Audiosocket. They are picky about whose music they accept, which is good, their “audition” process is quick and streamlined, they are accessible, and for the moment they seem very excited about punk music, probably because their clients (music supervisors) are asking for it a lot.
Now here’s how Audiosocket pays: You register songs with them. (The songs must be published.) They go into the catalog. After however long, and with whatever frequency, people start to license them, for small things (somebody’s YouTube video), medium things (a big company’s power point presentation), other medium things (background music on America’s Wildest Wedding Cakes) or kind-of-big things (end credits in a movie). Depending on size and how many times they want to use it, they will pay a licensing fee to Audiosocket. Let’s say that fee is $200. (A lot of them will probably be in that range.) Audiosocket will take 50% of the gross of that total (meaning $100). The remaining $100 (minus some small administrative fees) would go to the copyright holders on the recording (You, Gershom and Lilac). That’s the front end. The back end is the publishing royalties that the licensee (person/company who licensed the song) pays to the PRO based on how many times the song was used. The PRO then pays the publishing rights holders those royalties. As mentioned before, these are divided into two parts: a writer’s share and a publisher’s share. All of the writers share goes straight to whoever has been designated as the writer. As for the publisher’s share, it depends. If there is a designated publishing entity (in my case I have a publishing company called Red Executive) then 50 percent of the publisher share goes to me and 50 percent goes to Audiosocket. If there is no publishing company, then Audiosocket just takes the whole publisher share. So that’s something to think about as well.
This might all seem like a lot of trouble for money that amounts to a couple of large pizzas, but keep in mind, it’s all about volume. Audiosocket has a comparatively small amount of artists (currently less than a thousand) and a bunch of HUGE clients. Associated Press gets its music exclusively from them, for instance.
One final note on copyright:
Theoretically a song is copyrighted the moment you record it. But in order to get paid copyright royalties properly, you need to register with a company called Sound Exchange. It’s free. They administer payments on digital copyright royalties (i.e. the Internet) for the entire country. Registering with them is a pain but, the way the future of recorded music seems to be panning out, probably pretty important.
Oh, and here’s an interesting thing I’ve learned since I started writing this article, quite awhile ago: when I get publishing checks nowadays, a pretty high percentage of the (pathetically small amounts of) cash comes from live performance. This is because all three PROs now have a special set-up where you can input your setlists from when you play live. The PROs generally collect annual license fees from commercial venues. If you tell them what songs you played and where and when you play them, they carve out a tiny percentage of the license fees and give them to you. If you’re going to play this part of the game however, there is a very important and very clearly delineated ethical boundary you must observe: DO NOT REPORT VENUES THAT ARE NOT IN THE PRO’s SYSTEM ALREADY AND NEVER, EVER, EVER REPORT A SET FROM A NON-PROFIT OR DIY SPACE. The way the software works, it will ask you for a zip code or whatever and then give you a list of venues in that zip code and you pick the right one. If a venue is not in the system, do not under any circumstances add it or give the PRO any information about it. This will lead to harassment of the venue by the PRO. There’s no harm in a commercial space paying a license fee, and there’s no harm in you collecting a small part of it as an artist, but there is profound harm in you accidentally setting off a chain of events that leads to a PRO suing an art gallery or anarchist bookstore, etc. DO NOT DO THIS.
So, if you are one of those people who believe that all music should be free and shows should cost exactly what they cost in 1984 (even though inflation has averaged roughly two percent per year over the last 30 years) then I probably haven’t convinced you that learning about publishing and copyright law is a legit way to further the sustainability of your band and/or local scene. And that’s fine. I respect your single-mindedness. But let me leave you with just this one thing. In the 1990s there used to be a band in Philly called Ink and Dagger. They were pretty good, and they got pretty popular. Their singer died, tragically, and the band broke up. A few years later they learned that a song of theirs had been used in an Xbox game called Amped. Microsoft neither asked for the band’s permission to use the song, nor paid them to use it. With the help of a guy who had grown up going to hardcore shows in Philly and then went on to become a copyright lawyer, they filed a lawsuit against Microsoft (fucking MICROSOFT!) that resulted in a cash settlement. That’s pretty much my whole argument in a nutshell: Intellectual property law exists – however imperfectly – to protect people who make things from people who want to rip them off. And however flawed the system is, it at least functions to the point where a hardcore band from Philly can win a lawsuit against one of the largest corporations in the world.
As sales of physical recordings continue to decline and the costs associated with touring continue to increase, publishing and licensing are going to become part of how bands survive at every level. Right now, the cash payouts associated with streaming and digital sales are pathetically low, but that is likely to change. Getting a handle on intellectual property laws as they apply to independent bands could mean the difference between a future where bands can afford to tour and make records and protect themselves against corporate theft, and one where they can’t.
Joel Tannenbaum plays in a couple of Philadelphia’s best punk bands, Plow United and Ex Friends. Both groups have new releases: Plow United’s DELCO EP will be out July 10 via It’s Alive Records (listen here) and Ex Friends’ new EP Animal Needs is out now on Coolidge Records (listen here). Tannenbaum also has a PhD in History from the University of Hawaii, but at the time of publishing, no plans to create his own line of hot sauces.