Imagine the Scene:
Imagine you start a restaurant. It’s yours. It’s your business. Now imagine somebody comes in and says hey, I’ll take your restaurant and pay you 50% of the profits after I’ve deducted all my costs and will retain the right to sell the restaurant later. You’d tell them all the rude words before finding a creative way to tell them to get lost. Sitting at the Stereo Cafe, makers of the best mocha coffee I’ve ever had, despite it being in Bloemfontein, my conversations, elicited this metaphor.
For some reason, producers of music have, as a collective, allowed this situation to happen to them when they sign to some of the smaller labels and publishers. Sure, there are arguments to be made for market reach, marketing and know-how in making a hit so the more resourced and networked the company, the more likely you’ll get a better deal.
A ton of my artist friends send me draft agreements to look over and I often find myself getting upset at the amount of their creativity the agreement expects them to give away.
When confronting the labels and publishers on behalf of my friends using my attorney title, I get shouted at, bullied and generally dismissed. Sure, labels and publishers are in a more powerful position to simply say take it or leave it but what if… in the digital world where their relevance is starting to be questioned…what if producers knew how much legal power they wielded? I’d like to find out so I asked around and developed this list of the 10 most important legal considerations South African producers should know before selling their music…but before you do that, consider who you’re signing with can give you what you want!
1. Registration is not required to copyright music
You automatically get copyright on all original and reduced to material form made by a person in a Berne Convention Country (of which South Africa is one) .
In other words, once you write and record the music, the copyright exists!
It would help if you wrote that the material is protected by copyright on all the material but that won’t affect the nature of your copyright and, at best, serves to reaffirm you own the material. If you’re not going to indicate your copyright though, be sure to keep all supporting documents of production in case of disputes about who owns the copyright. This includes back ups of the original recordings and multi tracks to serve to be proof of originality. The Meta Data captured with each save serves as a timeline which will solidify your claim as to originality and ownership should a dispute arise.
2. Authors are not always owners
The general rule is that the author (defined as the person who makes or creates) of the music holds initial ownership rights. This may however not be true when somebody commissions the author to make the work or the author is employed by a publication for the purpose of making such musical piece. These positions in law can be set by contract. For this reason, it’s important to have a contract in place before entering into a commission agreement.
3. Copyrights expire
The magic number is 50 years. In the case of a literary work, it’s calculated as 50 years from the death of the author and in the case of a sound recording, the clock starts running from the first broadcast. Even though this is a long time, it’s an important consideration when rights change hands deeper into the lifespan of the work.
4. There’s a difference between assignment and licensing
Selling your music is different to licensing its use [essentially renting it out for specific purposes]. Microsoft made its money through licensing its products and ensuring people continue to pay as they use it. Granted, the music producer probably doesn’t have that much negotiating leverage and will likely only be offered deals to assign [aka sell] their rights over , it’s valuable to know all the options.
The label/publisher, will likely in turn, only licence your (now theirs) music’s use to various entities and users.
Check out the internet for knowledge on how the likes of Moby made “Play” work for him in many more ways than just selling the album.
One must beware when practices become viewed as law in lieu of what is actually law. Companies may tell you that selling all your rights still entitles you to royalties but unless that is actually specified in the agreement, the company always go back and say “lol no soz we own everything and you get nothing”. Anyway, royalties out of self ownership will always be sweeter than those stemming out of assignment…unless sales are significantly increased as a result.
5. Music does not just have one copyright associated with it
Generally music copyrights consist of various parts (which can be owned by different entities); the primary two are mechanical rights and performance rights.
Mechanical rights refer to the right to reproduce the music, mold it, shape it, place it on a medium and/or perform it. If for example, I wanted to record myself screeching Offspring’s Self Esteem and burn it to a CD, I’d need to acquire the mechanical rights to do that. Once I’ve done that though, in order for you to broadcast my cover, you’d need the…performance rights.
Performance rights refer to the rights which allow you to broadcast music. Whether you’re a DJ in a club, running a barbershop with the radio playing (yup) or trying to entice teenagers to come to your stall in a market by blasting Taylor Swift, you’ll need to pay to play that music.
Fortunately or unfortunately, depending on your experiences with them, collecting agencies (SAMRO, SAMPRA, CAPASSO, NORM and POSA) make the process simpler, on paper, to avoid copyright infringement and licence the use of music.
With the reintroduction of “needle time” in paying for use of music, these distinctions are important as both the holder of the performance rights and the holder of the mechanical rights (which can be but isn’t always the same entity) must be paid for the licensing of their rights.
6. The rules apply to you too
Artists are not exempt from following the laws. If you’re going to be covering songs during your live performances you’d need to acquire the rights to those songs. Often buddies in the scene don’t care and will gladly have their friends’ bands play one of their pieces.
You can imagine acne riddled teens backstage saying a high school fund raiser saying, “Hey dudes, we love your song. Would you mind if we covered it?” If the answer is met in the affirmative then cool! If however, the song is owned by another entity, it wouldn’t matter if the band answered in the affirmative because they wouldn’t own the rights.
7. Copyright laws are not the same all over the world but kinda are
Each country having its own sovereignty has its own ways of recognising copyrights. Fortunately, most countries have signed and ratified international copyright treaties meaning that if a copyright is issued in one of the signatory countries, it will be recognised in all the others. South Africa is party to and has ratified the Berne Convention for the Protection of Literary and Artistic Works and the Agreement on Trade-Related Aspects of Intellectual Property Rights.
This means that all copyrights recognised in South Africa will be recognised in most countries around the world. By way of example of the extent of the protection, 172 countries are signatories to the Berne Convention.
8. Being on the right side of the law is not always in your best interests
When wanting to go to battle to protect your copyright, you may want to consider what you’re fighting for. If you’re going to be fighting over rights to a single song and a couple of hundred bucks, it may be better to forfeit the fight in the interests of keeping a reputation in the industry.
Labels/Publishers know that they wield greater leverage in terms of resources and this is why agreements should be reached in full before any work is done. Often producers get excited and say yes to signing to get the song out while not caring about getting a contract in place until some of the work has been done.
At that point, thy’re is in a position to say something like, “It’s because of us that your song is on Metro FM” and try use that to strong arm a producer. If you’re only agreeing to terms of your contract after your song is on the radio, it doesn’t mean that you have to take the their demands that were never agreed to before. However, you might not want to fight over the small things lest you get a reputation in the industry and no label/publisher wants to touch you as a result. It’s best to avoid this situation by having written, unambiguous contract in place prior to the commencement of any work by either party.
You should keep in mind that this industry runs on “clout”. This does not mean your mates on Facebook and Twitter. This mean your power to draw a crowd and fill up a venue. Once you get some clout going, you will also get to roll with the bigger kids and flex your muscles more. One hit on the radio does not make you a superstar so don’t make huge social sacrifices when there’s little at stake.
9. This is Chewbacca
Avid followers of the early days of South Park will recognise the Chewbacca defense. For those who don’t know, it’s a method of promoting your legal interests by causing confusion rather than being on the right side of the law.
Sometimes they adopt this and I’ve seen draft contracts which are so ridiculously convoluted and contorted that signing them potentially could have an artist paying to play their own music on behalf of the new owner.
Always seek legal advice on your contracts before signing them even if it costs you. In much the same way as a cheap lawyer may end up costing you more than an expensive one, forfeiting legal advice may cost you the foundations of a great career.
10. You’re allowed to say no!
I understand the appeal of being able to say I’ve signed to a label. It’s the socially accepted mark of success in the music industry. Unfortunately, many people have started labels knowing this and will sign anybody just to make the quick buck.
Before you sign an agreement, after you’ve sought legal advice, consider for yourself who the other artists signed to the label are. Consider whether you’d want to be associated with them. Shop around.
Labels are only so powerful because producers let them be. Without the producers, the labels would have no product but without the labels, the music would still exist. It may be more difficult to get it out but in the digital age with the ever lowering cost of recording, now more than ever, labels are becoming more redundant. With their backs against the wall, it’s understandable that they’d be incentivised to strong arm producers. If producers were equipped with the above knowledge though, labels will need stronger arms in future!