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We regularly participate as seminar panelists, moderators, guest lecturers and professors. This section, "Frequently Asked Questions" (FAQs), sets out brief answers to numerous questions that frequently arise when we speak to various groups in the music industry.
Copyright
Demos Management Publishing Recording Trade-mark General A1 - Do I have to register my copyright? What does it cost? One does not have to register one’s copyright in order to acquire copyright protection. Copyright protection is acquired "automatically" without the formal requirement of registration, assuming the work is original, i.e. not substantially copied from another and is in a tangible form. The choice to register is voluntary. If you do register your copyright you acquire the presumption in law that the copyright to the works is registered and owned by you, the registrant. The disbursement cost is currently $65.00 and takes about 2 months. See cipo.gc.ca for more information and application forms. See also A2 below. A2 - How do I copyright a song? Copyright, in most cases, arises automatically under The Copyright Act without the requirement of copyright registration. The song however, must be original, that is, not substantially copied from another copyright protected work and it must be the product of a combination of industry, skill, knowledge or experience. It must also be put in a tangible form of expression, a song on a demo, for example. A3 - How can I ensure that I will be paid royalties from a radio station? You must be a songwriter or a publisher member of SOCAN, or a performing rights society with which SOCAN is affiliated and your song titles must be registered in order to receive public performing rights income. SOCAN, Canada’s only public performing rights society, regularly monitors radio stations via a computer logging system so that public performance royalties can be paid. In most cases, airplay logging is random and the amount of performing rights income is based on many factors. SOCAN is affiliated with performing rights societies in various territories throughout the world which collect on behalf of SOCAN members. For more information contact www.socan.ca. A4 - I am the author of a song that another Artist wants to take a sample from. I don’t know how to charge them for the use of my material or how much. This question as to what will be payable varies largely depending on the stature of the Artist, the song and the recording from which the sample is made. But as a general rule, if it is a sample from a record which results in another recording, a percentage of Artist’s royalties on the resulting recording would be payable. In addition, if a musical composition is sampled, then the right to share in a percentage of publishing income which is generated might be negotiated, in addition to a share of copyright ownership in the resulting work. A5 - I heard my song in a TV show and I didn’t give them permission to use it. What can I do? This can be a complicated legal issue involving copyright infringement and skilled legal advice should be sought with respect to the potential of granting proper licences and the potential of pursuing litigation. A6 - Should I send a copy of my lyrics or recordings to a performing rights society? How much does it cost per song? Performing rights societies do not archive copies of lyrics, songs or recordings. SOCAN is a title only registration system for musical compositions only, not recordings. No deposit of lyrics or music is required or accepted. Keep in mind that one must be either a publisher or writer member of SOCAN in order to register song titles with them. Such registration costs nothing for a writer member registering on line or $25.00 for writer members who submit paper applications and $50.00 for a publisher member. In addition, SOCAN has criteria which must be met in order to qualify as a writer or publisher member. Registration of your song titles with SOCAN should ideally be done prior to release of the recording in which they are embodied or prior to the time when public performance royalties may be earned for example, from airplay. One may choose to deposit one’s lyrics, songs or recordings thereof with the Songwriter’s Association of Canada with the requisite fee, as proof of copyright ownership. See www.songwriters.ca for more details. The Library and Archives Canada does require a deposit of published sound recordings, sheet music, videos and other designated materials as part of its comprehensive collection of Canadian music. For further information contact: 1-866-578-777 or legal.deposit@lac-bac.gc.ca. A7 - How many songs should we put on our demo? The industry rarely likes to review more than three or four songs on a demo. There should be three or four of your best songs on the demo. Put your best song first. If you have only one good song, then put only that song on the demo. A8 - What is the best way to present myself on a demo? Currently, the best way to present yourself is with a high quality recording that demonstrates your artistic capabilities and vision, accompanied by a photo and good bio. A video is not required but may be helpful, provided it presents you in a positive and professional manner and does not detract from your music. Video production can be extremely costly and is not essential in a presentation. A9 - How do we get our demo to a record company? While many record companies accept "unsolicited material", sometimes it is necessary to go through a manager or a lawyer with which the record company is familiar. Unsolicited demos can be sent via courier, mail, e-mail attachment, or link, or delivered personally. Your website and websites like MySpace are also important artist and repertoire sources for record and publishing companies. A10 - Do you shop demos to A&R representatives? The firm will consider "shopping" or "soliciting" to publishing companies, record companies and managers and we do listen to a lot of the material that is sent to our office. Clearly, in order to do so, we must assess the material and believe that we could be effective representing it. A11 - How should demos be delivered? A demo can be hand delivered, couriered or sent by mail. MP3s and your website are also important ways to present your music. The urgency of the submission and whether or not it is solicited will affect your decision on how to send the demo. In many cases unsolicited material is not accepted. A solicited demo is one that is requested or sent by way of recognized representation as discussed above. In such case one should attempt to have material solicited by a recognized representative, for example, an industry lawyer, an Artist manager or a well known booking agent. In order to ensure that a demo is solicited you might send your inquiry correspondence first and then wait for a reply with respect to forwarding your material. If it’s then requested, it is solicited. When sending introductory correspondence, it should be made clear who is making the request. It must be clear who is involved in the project so that enough interest may be generated in order to have the material, being solicited, accepted. A12 - Can an Artist be successful managing him/herself? Does an astute business-minded Artist need representation by a manager? The answer is yes, an Artist can be successful in managing him/herself. However, at a certain point in an Artist’s career, in order to be successful as an Artist and to continue to be free to record, perform live and write songs, all of which require large time commitments, a manager can become extremely valuable (in essence to enable the Artist to focus on being an "Artist"). In addition, managers can be helpful in providing, among many other services, the following: * Advising the Artist on useful personal and business matters.
See Chapter 6: Agents and Managerss of "Musicians and the Law in Canada" for more details. A13 - How do I find a manager? Finding a manager can be a difficult task. In most cases, if an Artist has commissionable earnings, a record deal in hand or a publishing agreement, the manager may seek out the Artist. A manager can be solicited much like a publisher or a record company. Often managers find Artists, not the other way around. See also A12 above. A14 - I am an Artist and I signed an agreement with a manager but things aren’t working out. How do I get out of my management agreement? A personal management agreement may contain contractual remedies under the agreement itself, for example, a performance obligation to obtain a recording contact within a specified period of time, or maintenance of a certain level of gross income. If any of such obligations were not met within the specified time set out in the agreement, one would look to the contractual remedies set out in the agreement, which may allow the term of the contract to be terminated. Other fundamental breaches, such as failure to allow an audit or failure to account may allow the right to terminate the term of the contract. Typically, termination of the agreement by the Artist is accomplished by giving notice to the manager in writing, via registered mail or personally by courier. For example, the right to terminate may be subject to a default and cure clause. A default and cure clause usually states that you must put the manager on notice first that he or she is in default of fulfilling their contractual obligations and then allow them reasonable time to cure the default, usually a thirty or sixty day period. One can further look to case law to see if the term was unduly restrictive, in restraint of trade or unconscionable - these determinations should be made by someone with skilled legal knowledge, and ultimately may be made by a judge in a court of law. One should not overlook the human aspects of the relationship. A negotiated settlement is often advisable and more cost effective than litigation. If the arrangement is not working out for the Artist, it is probably not working out for the manager either and joint consent may be given to terminate. If you have not looked at this aspect first, you may be spending a lot of time and money needlessly. A release under the agreement should be in writing signed by both parties. This can be a complex legal issue and skilled advice should be sought. A15 - What is music publishing? Simply put, music publishing in the business sense is the exploitation of musical copyrights, usually by licensing rights to musical compositions, with a view to making money. In the legal sense, music publishing means issuing copies of a musical work to the public. Copies may be in the form of a CD, or sheet music, for example. A16 - What do people mean when they say "keep your own publishing"? In essence, "keeping your publishing" means keeping the copyright to the music that you have written, own or control. In terms of revenue, if you keep your publishing and you are the sole songwriter, you will receive all of the writer’s share, that is 50% of the revenue, and all of the publisher’s share, that is 50% of the revenue, for a total of 100% of the revenue. See also ’Should I Keep My Publishing ...’. A17 - When should I publish my music? Generally, one should consider publishing one’s own music if it has commercial potential, which is the potential to make money from it in the marketplace. As a side note, the decision whether or not to publish your own music is often made as a matter of expediency. For example, if you as a songwriter have been unable to attract the interest of an established music publisher, you may make the effort to publish your own material. "Publishing" generally means exploiting musical compositions by licensing rights such as synchronization rights to movie production companies or obtaining cover recordings of the music and issuing a mechanical rights licence. Also a relevant and related issue is whether or not you should enter into a publishing agreement, which is a complex issue, subject to many legal and business factors and skilled legal advice should be sought in each and every case. See also A19 above and also See also ’Should I Keep My Publishing ...’.A18 - Are night clubs required to pay royalties for playing copyrighted music? If so, when and how is it monitored? Night clubs are required to be licensed by and pay a yearly fee to SOCAN, Canada’s only performing right society, for use of its members music and other music governed by reciprocal agreements it has entered into throughout the world with other performing rights societies such as ASCAP, BMI, SESAC, GEMA, JASRAC. SOCAN, not the night club, then pays public performing rights royalties based on the fees it collects, to its members and affiliates. It should be noted that certain criteria must be met to qualify for the right to receive public performing rights royalties by SOCAN generated by live performances of music in night clubs and other public venues and SOCAN must be advised in writing of the performance. For more information contact SOCAN at www.socan.ca. A19 - How can I get a song played on the radio? Your recording and related promotional materials should be forwarded to the program director or, depending on the station, the DJ responsible for a particular program. You should follow-up either by phone, fax or e-mail. In addition, you may consider hiring a radio promoter to "pitch" your recording. A20 - How do I get permission to use a portion of someone’s copyright material (for a sample)? There are several copyrights for which one may require a licence, including, musical copyrights and copyrights in sound recordings. Concerning sampling, there are three issues to discuss. If a record company has the copyrights in the sound recording and a publisher has the copyrights to the song which is sampled, then their respective consents must be obtained. In addition, in some cases, consent is required from the Artist whose performance is embodied on the recording you wish to sample. With respect to clearing reproduction rights for musical copyrights, most Canadian publishers are represented by the Canadian Musical Reproduction Rights Agency (CMRRA). This is a good place to start to coordinate a search for a clearance for such a licence. With respect to clearances for copyrights in sound recordings, one may approach the Audio and Visual Licensing Agency (AVLA) which deals with record and video masters or approach the relevant record company directly. In addition, and perhaps most practically, there are a number of commercial, private search houses which could be hired to assist in the clearing of such rights. A21 - How much money will I make when my song is played on the radio? It is difficult to give an exact figure, as the form of revenue is contingent upon several relevant variables such as: where and when your music is being played and how often, the length of your song, how much of the song you wrote, and how much of the copyright in and to the song you have retained and how much airplay is generated. Radio stations are required to pay a licence fee to the performance rights society (SOCAN in Canada), which in turn monitors the stations’ airplay and administers payments to the appropriate parties (songwriters and publishers), based on the above variables. For more information, contact SOCAN Member Relations in Toronto at 416.445.8700, or 1-800-557-6226 or www.socan.ca. A22 - How does an independent label gain access to the international market? This question is one of marketing and international contacts. Like any business, the music industry is a business of people. Attending industry events provides a way to meet people. Speaking to people on the telephone, e-mails and forwarding solicited materials are often how independent labels gain access to the international market. It is important to research record labels and distributors in foreign territories to confirm that they deal with your genre of music. Music conferences such as MIDEM held annually in Cannes, France can also provide a good opportunity for labels to network at the international level. We regularly attend music industry events and have participated at MIDEM since 1988. Access to the international markets may also be had through a Canadian record distributor or record label which also distributes or licences recordings outside Canada. A23 - How do I get our indie CD into record stores across the country? One would approach the appropriate rack jobber or distributor and they would order based on demand. With some record stores, you may be able to consign your product directly. A24 - I have received an offer from a record company. What do I do now? Consult with those who can give skilled advice such as skilled managers in the industry and legal counsel to proceed with the proper negotiation. A25 - Is it better to sign a record deal in the U.S. than in Canada? This is a very complicated question and has been answered in some detail in various published articles. It is best to review each situation carefully and seek skilled legal and business representation before making any decision in this regard. A26 - What is a good advance/royalty/distribution fee? This question again, requires skilled legal advice and each agreement and each situation should be reviewed specifically based on the facts and circumstances. Books such as Musicians and the Law in Canada can be helpful to consult. See Chapter 9: Recording, for example. A27 - How can I copyright (trade-mark) my band name? What does it cost? One does not copyright a band name. It is protected by trade-mark. Some information about registering a trade-mark through Sanderson Entertainment Law is outlined below:
A28 - One of our band members has left the group. Can we still use the songs we wrote together? Can we still use the band name? Both of these are complex legal questions and skilled legal advice should be obtained. Under the Copyright Act in Canada, the general rule is that the songs that were co-written cannot be exploited without consent of the other co-writer. If there is a dispute as to whether one can or cannot exploit the songs, in absence of such consent, it would be problematic to use the songs that were co-written. Use of the band name triggers a complex trademark issue and skilled legal advice should be sought. Often the legal issues that arise in this situation can be resolved in a leaving member agreement and by negotiation. If there is a written agreement, entered into by the band members, this can be helpful and should be reviewed thoroughly. A29 - How do I get out of a signed contract? Once again, this is a complex question and one should seek and receive skilled legal advice. In general, a thorough reading of the agreement is required and the agreement itself may contain contractual remedies. Often, this matter can be extremely time sensitive and skilled legal advice should be sought immediately. A30 - How much are your rates? Our rates vary depending on the service required and who provides it. Some routine file matters may be billed on a flat rate basis while other matters are billed at an hourly rate. Our hourly rates currently range from $200.00 an hour for Paul Irvine, our entertainment paralegal to $350.00 an hour for Paul Sanderson. We strive to provide you with an appropriate level of service that fits within your legal budget. A31 - What can I do if somebody in the entertainment business owes me money and won’t pay? Depending on the amount of money owing, one can pursue a legal action either in small claims court or a higher court level. If the debt was incurred pursuant to a written agreement, there may be contractual remedies or processes set out in the agreement, for example default and cure or termination provisions. |