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The Composer’s Guide to Doing Business: Copyright Part 4

Thursday, February 9, 2012

In this week’s installment of The Composer’s Guide, I’d like to broadly cover fair use: address some common misconceptions, look at a few examples, and offer some friendly (i.e., not-legal) advice.

Misconceptions abound about what fair use is and how it can be applied. I’m sure we’ve all heard many of the myths about what constitutes fair use of a copyrighted work: any educational use is fair use; use by non-profits is fair use; any non-commercial use is fair use. Or: so long as you only use 15 seconds or less of a recording or piece of music, it’s fair use; using 300 words or less of a text is fair use. These are vastly misleading oversimplifications of the truth.

A few quick examples can easily show the flaws in these lines of thinking: a teacher photocopying a book chapter by chapter and passing it out to her class week after week to avoid the school having to pay for 30 copies of the book is certainly not fair use. It may be educational, but the sole intent in this particular situation is to avoid paying for a copyrighted work (even if the text itself is in the public domain, chances are that the edition in question is still under copyright). A non-profit organization performing copyrighted works at its annual fundraising gala without paying the proper licensing fees: the cause may be a worthy one, but that doesn’t mean that the author should be automatically deprived of his licensing fee – especially when a simple request to the author may result in his waiving his fee or reducing it significantly.

Using a quote or audio sample of 15 seconds or less is a pretty arbitrary number to assign, especially if the sample used is the most recognizable part of the original work. Examples abound of songwriters sampling other recordings and getting the pants sued off of them because they were dumb enough to use a sample that was highly recognizable, and base their entire work around that single sample. 300 words is also ridiculous arbitrary. Consider a 100-word poem – would using all 100 words because it’s under 300 ever be considered fair use? Of course not.

These examples – and probably most misapplications of “fair use” – stem from the perception of fair use as a right. “Because of fair use, I have the right to use some portion of another creator’s copyrighted work without getting permission or compensating them in any way.”

In actuality, fair use can really only be determined on a case-by-case basis. There are a number of factors that can help to determine whether a particular use is fair use, but they don’t necessarily make any guarantees. According to the U.S. Copyright Office, those factors are:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work

You can see where some of the myths come from – they take these factors and blow them out of proportion. The fact that your use of a work is non-commercial in nature may help decide in your favor that it is, in fact, a fair use, but won’t guarantee it. The fact that you use only a very small portion of a text in your work may help decide in your favor, but is that portion the most important part of the work you’re quoting? If the portion you quoted is the climax of the original work, and reveals “the twist” or the most important piece of information in the work, you’re likely not going to be able to call it fair use.

Hopefully you’re beginning to see that the claim of fair use is not a right, but a defense. By saying “this is fair use”, you’re putting yourself in a defensive position, admitting that you haven’t asked permission and probably don’t intend to.

This isn’t necessarily a bad thing. Obviously, arts scholarship requires that any works being studied be quoted. Commenting on or criticizing a copyrighted work is – again generally – a fair use, although there are still limits to what is acceptable, and they must be taken on a case by case basis.

Another generally accepted fair use is that of parody. If you take a copyrighted song and replace the words in such a way that you’re parodying the song itself, you’ll likely be able to claim fair use. Satire, however isn’t covered – so if you change the lyrics to lampoon a political candidate or comment on something other than the original work, you’re not protected under fair use.

You can see how muddy and confusing fair use can be. To further muddy the waters, I’m going to take an example from my own life and argue both sides of the issue.

A visual artist friend of mine used one of my scores last year to create a mixed-media work that in turn inspired a whole body of work. Now, let’s ignore the fact that she had my permission to use my score, and act for the moment as though she didn’t.

In this situation, I could argue that her use was not fair use. First, not only did she photocopy my score, she used my intellectual property as the basis for her own creative work. The mixed-media work directly used the written score. Because the work was created specifically to be shown in a gallery, the commercial nature of the work is a foregone conclusion (an artist doesn’t exhibit in a gallery unless they intend to sell – and the piece sold very quickly). The visual nature of the score was also a direct inspiration to the composition of the work. And because a cross-section of the work was used, rather than a limited portion of it, one could argue that a substantial amount was used.

On the other hand: My score is a representation of sound – the look and the engraving are intended to facilitate performance, and not to serve as a work of visual art, so the nature of my work doesn’t directly intersect with hers. The pieces of the score used – although photocopied – were small circular bits punched from the page, rendering the music virtually unrecognizable. And in addition to the confetti-like treatment, the colorization of the “dots” added another visual element of differentiation. The fact that the pieces were no bigger than hole punch confetti makes the use fairly unsubstantial. And the fact that her use of my score doesn’t affect the market value of my own work – either positively or negatively – rules out economic considerations. Also, even though my score inspired the piece – and ultimately the entire body of work, though it was only used in the one piece – any other score could easily have been used (and were in other works in the series), rendering the use of my score somewhat inconsequential.

This situation could be argued either way to varying degrees of effectiveness. Now, of course, my friend had my permission to use the score, so this is a purely academic exercise, but it shows how muddy the waters can be.

One of my favorite examples of how to approach fair use is Weird Al Yankovic. Weird Al is known for his parodies of pop songs, which falls squarely – unequivocally – under the umbrella of fair use. However, he makes a point of asking permission from each of the copyright holders before he uses their songs on his albums. He could forego getting permission, and stand back and use the argument that his songs fall under fair use, but by doing so, he leaves himself open to litigation. He may be “in the right”, but that doesn’t stop the artist from suing him, which is both time-consuming and incredibly costly. He avoids the issue entirely by asking permission in the first place. He eliminates all gray area, and saves himself the worry and potential expense and difficulty.

So that said, my friendly advice is this: when you want to use any portion of another artist’s work, ask permission first. If there’s the slightest chance that they may be unhappy with your use of their work, protect yourself and ask their permission before you even start. And if they say no? Move on. Walk away. Find something else to quote or sample or whatever. There’s nothing to stop you from doing it anyway and trying to claim fair use, but know that if you’re sued – you’re responsible. No one else.

You’re going to hear that a lot from me: You’re Responsible. You’re responsible for your own career. No one else. So when it comes to issues that affect you, you should educate yourself – know what you’re getting into, and be prepared.

You’ll likely encounter times when you run into issues of fair use – both in your own creative process, and in someone else’s – so you should know what your rights are so that you can handle the situation in a manner that is both knowledgeable and intelligent.

So I leave you this week with a few links that I think you’ll find interesting.

First, is a link from Stanford University Library’s site on Copyright & Fair Use outlining a bunch of thought-provoking examples of what is and is not fair use.

And second, two links from the blog of Weird Al Yankovic in which he discusses fair use and his policy on getting permission: The Gaga Saga and Gaga Update.

See you all next week to talk about Copyleft! In the meantime, do you have any fair use stories? I’d love to hear about them in the comments!

I write the Composer’s Guide here once a week, taking time away from my composing to do so. If this post helped you in any way, please leave a tip or a small donation on the way out. If you can’t afford to donate, please pass this chapter along to someone who you think might get some help from it.

And I really love to get feedback in the comments section, via email, and on Twitter - they really keep me going on this project.

Thanks!

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The Composer’s Guide to Doing Business: Copyright Part 3

Thursday, February 2, 2012

Welcome to part three of our discussion of copyright. This week I’d like to cover the topics of public domain, the doctrine of first sale, and at least get a start on fair use.

First, however, I’d like to make an addendum to last week’s chapter on the benefits of copyright registration. It was pointed out in an excellent comment that I had overlooked an important point, which I’d like to address here.

What I overlooked last week was the fact that the most common type of infringement that a concert music composer today will have to face (any file sharing aside) is an unauthorized use of a recording of the composer’s work by a dance company or non-profit organization, or an unlicensed live performance. Small-potatoes-style infringement.

The most effective way to deal with such a situation – in my opinion – is merely an email or letter from you stating the issue and offering a solution. These types of situations are born out of an appreciation for your work, and most likely an ignorance of the company’s/organization’s obligations when it comes to using copyrighted material. The commenter suggests – and I wholeheartedly agree – that you request a retroactive licensing fee.

Your letter should be polite, yet clear. Explain why you’re writing, be direct, but don’t be an ass. If you keep in mind that these people liked your music enough to use it – quite the compliment! – and that they should be treated with respect as your artistic colleagues (and just as people), you’ll do yourself a service.

Lawyering up in this instance is not only overkill, but likely to earn you a poor reputation in the community. Nobody wants to be known as That Composer Who Sued The Small Dance Company Because They Used His Music Once And Didn’t Make Any Money Anyway.

Unlicensed performances are also best handled by your Performing Rights Organization. Each PRO has a reporting system in place for performances so that there’s a greater likelihood that they will be properly licensed, even after the fact.

Always, always, always act in good faith.

Public Domain
So what happens to works when their copyright term is up? Provided that their term isn’t extended by changes in the law (another discussion for another day), they go into the public domain. The expiration of copyright is – like the existence of copyright itself – intended to “promote the Progress” of the arts. If copyright were indefinite, we wouldn’t have nearly the access to works and scientific writings and findings that we do now. Our artistic and scientific advancement would be seriously curtailed.

It’s public domain that allows us to use poems by Shakespeare or Whitman or Dickinson in our vocal and choral works without having to pay licensing fees or royalties. Because the copyright term on those works has expired, other artists are free to make use of them without compensating the artist (most likely long dead) or his/her estate.

Personally, I prefer working with living poets when I set a text, but there are projects for which I feel that it’s more appropriate – or just plain easier – to use a text in the public domain. All of my choral works use public domain texts, but the bulk of my art songs are on poems by living poets. I have both artistic and financial reasons for this dichotomy. For one in-progress, temporarily-stalled project, I’ve chosen to set 24 public domain texts and collect them into a single album of songs; by setting only public domain texts, I remove any question of what portion of royalties are due to this poet or that out of the sale of the collection. However, I find great artistic satisfaction in setting texts by poets I know, as well as bringing their poetry to a wider audience. Plus, I just really like the idea of helping my friends to earn additional royalties from their works. Big warm fuzzy.

As I mentioned last week, it’s not always easy to know when a work is in the public domain. As a rule, it’s usually – though not always – safe to assume that something written before 1923 is in the public domain. After that point, things start to get more complicated depending on where it was published, whether it was published with or without a copyright notice, and if it complies with various and sundry U.S. Copyright formalities (this last one applies mostly to older works published outside of the U.S.). Here’s an interesting resource from Cornell University’s Copyright Information Center that makes things a little clearer: http://copyright.cornell.edu/resources/publicdomain.cfm

So what happens if you think something is in the public domain, use it, then subsequently learn that it isn’t? Surprisingly, I’m actually dealing with such a situation at this very moment!

A few years ago, I wrote a choral piece believing that the text was completely in the public domain. It turns out that the version of the poem I used was an adaptation of the original by another (living) composer for one of his operas. I hadn’t registered the work either with the Copyright Office or ASCAP, so I haven’t earned any royalties on the piece, and have no registrations to amend. The change from the original is very, very minor (substituting one proper name for another). I could conceivably change the name back to the original, but I rather hate the original. Or, I could find another name to substitute. (Tried it – really hard after becoming so accustomed to it. And I chose the poem partly because I liked the name so much!)

I’ve opted for a third route: I’ve emailed the composer, asking his permission to use the text as I currently have it in the score. And when I say “I’ve emailed the composer,” I mean that I’ve only just emailed him, so I haven’t yet had the chance to receive a response. I’ll be sure to keep you all informed of the progress of the situation, hoping, of course, that this will be an excellent example of the power of writing a friendly, straightforward message that addresses the issue and offers an equitable solution.

Doctrine of First Sale
There are a number of names for the doctrine of first sale: “first sale rule”, “exhaustion rule”, “right of first sale”. So what is it, and how does it affect you?

The first sale rule allows the purchaser of a CD or score (or other individual copy of a copyrighted work) to either sell or lend that copy to another person. So, if you buy the score of a string quartet, you can then resell it. You can also lend it to another person.

You can’t, however, make a copy of it to sell, or to keep when you sell the original. Any copy you may make is, of course, an illegal copy.

It also, in the case of scores/parts (although not CDs or other “phonorecords“), allows the original purchaser to rent his copy to others.

So.

I buy a copy of the score to your most popular piano piece. A pianist I know wants to perform it, but can’t afford to buy it. So (because in this example I’m a bit of a dick), I rent it to him at a lower cost than if he were to buy it. I’ve just – legally – made a profit off of your copyrighted work. I’ve probably not made much, but it’s profit that you’re not legally entitled to. Not a huge deal in the long run, but there are instances when the first sale rule can start to chafe for some. (I’m not entirely sure that I mind this whole thing, but it’s absolutely worth knowing about.)

For example, Choir X buys 60 copies of one of your choral pieces so that they can perform it. A month later, Choir Y wants to perform it as well, so, rather than pay to buy it from you or your publisher, they rent it from Choir X instead. Choir X can rent your piece out to choir after choir, keeping you out of the income loop, and it’s completely within their right to do so. This is a fairly common occurrence, although it seems that more choirs are attempting to buy scores rather than rent them (I’d love to get some statistics on this, or at least feedback from choral staff). It’s also not unheard of in the concert band world. Orchestras do it less because they tend to rent their scores and parts directly from the publisher, and usually don’t buy.

And there’s the interesting point in all of this.

If you fear that copies of your scores will be rented out, and that your sales will suffer for it, your recourse is simply to not sell your scores/parts, but to rent them. Then, the terms of your rental agreement can prohibit the renter from sub-renting to other ensembles. Should you forget that particular provision, then be content in the knowledge that the renter would most likely have to sub-rent the piece at a higher rate than you are charging in order to make the whole thing worth their while, at which point it’s no longer worth the while of the sub-renter, because they can get it cheaper directly from you.

Also a possibility, is the idea of “permanent loan”, which I’ll cover in subsequent chapters on rental agreements.

In terms of practicality, I find the doctrine of first sale to be more academic than useful. But I know that there are composers who do worry about it. There are a lot of factors involved here in the sell vs. rent argument, and, like I said, I’ll cover it in later chapters.

Fair Use
Here’s a biggie. And I surely won’t be able to cover everything in this chapter. So: a quick overview.

Fair use was implemented in order to allow for discussion of copyrighted works, and to further – here’s that phrase again – “promote the Progress” yadda yadda yadda. How is science to further itself if one scientist refuting another’s published claim can’t quote the original in his own paper? How can a book or play be criticized, studied, reviewed, if the original text can’t be quoted? Imagine a TV news story reporting on a concert or musical or gallery opening that couldn’t display any portion of the event in the report – what would be the point?

There are also a LOT of misconceptions about what constitutes the fair use of a copyrighted work: educational use is always fair use; the 15-second limit; the 300-word limit; use by non-profits; the use is non-commercial; etc. There are a lot of instances when the use of some portion of a work is fair use. There are even more that are fuzzy.

My own personal opinion is: when in doubt, ask permission.

That said: it’s late, I’m nearing my 2000 word limit, and I have a mysteriously limping kitten that needs some love.

So let’s meet back here next week to talk in much greater detail on fair use. The week after, we’ll wrap up copyright with a discussion of Copyleft, and then we’ll move on to new territory.

So: what are your thoughts on using public domain texts, tunes, etc in y our work as opposed to more contemporary stuff? Do you have a preference? Let me know in the comments!

And I really love to get feedback in the comments section, via email, and on Twitter - they really keep me going on this project.

Thanks!

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The Composer’s Guide to Doing Business: Copyright Part 2

Thursday, January 26, 2012

Welcome to this week’s installment of The Composer’s Guide to Doing Business. This week, I’d like to continue our discussion of copyright, and cover the whys and the wherefores of registering your copyrights with the U.S. Copyright Office.

Before we get started, though, I’d like to remind everyone that I’m not a lawyer or a law professional, just a composer with an obsession with the practical aspects of having a career in music. This Guide shouldn’t be interpreted as “legal advice”, but as observations based on experience and (extensive) research.

On to the fun stuff!

Thanks to the Copyright Office’s new online system, registering your copyrights could hardly be easier. The first copyright I registered was back in 1998 – one of my very first compositions, which I guarantee will never see the light of day until some lucky doctoral student decides to write their dissertation on my juvenalia decades from now. My Sonata in C#-minor (yeah, I know) was the first thing I’d written that I’d taken the pains to notate, and it was such a special occasion for 16-year-old me that I raced out to get it copyrighted as soon as possible.

Even then, having to fill out the paper form and mail it off, it was an easy process – so long as you had the right form – and I had no difficulty at all, even at such a tender age. With a little poking around online with my family’s AOL account (who’d have thought the internet could ever have been that young?) I found Form PA, printed it out, and set about registering my very first copyright. The form itself was only two pages (it still is, and hasn’t changed a lick in the intervening years), and took a matter of minutes to fill out. I’m sure I spent infinitely longer looking over the form again and again to make sure I hadn’t overlooked something or misread the instructions. Imagine my surprise to learn that such a fabled thing – a COPYRIGHT – was so easy to register!

Off the form went in the mail with a photocopy of the manuscript and a check for $65, and a few months later (no one ever accused the government of working quickly) my form showed up again in my mailbox with the “Do not write above this line” section filled out with my registration number and effective date. Bliss!

Now there may not have been much call to register the copyright for that particular piece, especially since no one has seen it (and I’ve barely thought of it) since the late ’90s, but by going through the process, I learned a very valuable lesson: things like this tend to be a lot easier than they seem.

Even though the thought of bureaucracy and filling out forms can be daunting to some, registering your copyright is a very simple thing to do. And it’s something that every composer should do, for a number of reasons.

Why Register Your Copyrights?
A few months ago, a friendly acquaintance on Twitter weighed in on my earlier post about copyright, and said that he didn’t think that the government should be the arbiter of copyright at all. I kept my snark to myself, being the polite, gentle soul that I am (*wonders of anyone actually believed that last bit*).

Of course, I wanted to give my acquaintance a light smack on the head.

Government is the arbiter of copyright. And there’s no other arbiter even remotely possible.

Why?

Well, let’s look at some of the benefits of registration, and go from there.

The primary benefit of registering with the U.S. Copyright Office is so that if your copyright is infringed upon, you have clear redress to the situation.

The first step to take in case of an infringement is to get a lawyer. Your lawyer will draft a letter informing the person or business:
a) that they are infringing on your copyright, and
b) that they must stop their use of your materials at once.

The second step is to drag their sorry asses to court. Now, in some instances, the infringement isn’t severe enough to bring to this point. Some people just plain won’t have known that what they were doing was illegal, and will be mortified, and stop what they were doing right away. Chances are, these people won’t have done enough damage to warrant taking to court.

But other people…

Sometimes the other party just won’t stop. Either they don’t care, or they think you don’t mean business, or they’re just black-hatted, mustachioed arch-villains bent upon the destruction of society through their disregard of intellectual property laws. Y’know. The founders of Napster. (I kid, I kid.)

In this situation, your registration with the copyright office will be immeasurably in your favor, because you can’t even file an infringement suit without a registration! Without a registration, the only redress you have is to write letters and cry into your pillow.

If you decide to wait until someone has already infringed on your copyright, you’d better be quick about registering.

Copyright holders who register in a timely manner are entitled to significantly greater damages in infringement suits. Many victims of copyright infringement are only entitled to actual damages – the amount of money the other person gained from the infringement. This usually isn’t much at all, so the costs of filing the suit will far outweigh the damages that you’ll be paid in this instance.

However, when you register in a timely manner and successfully sue the infringer, you’re also entitled to what are referred to as statutory damages, as well as court costs and legal fees. This is a HUGE incentive to register your works.

If your work is published – and, considering as most of us self-publish these days, it probably is – you have two chances to register in what is considered a “timely manner”. Your registration is considered timely if it’s done either:
a) within three months of publication, or
b) before the infringement first occurred.

If your work is “unpublished”, you must register before the infringement occurred in order to be eligible for statutory damages (which can be as high as $150k!), court costs, and attorney fees.

If you didn’t already, I hope you’re starting to see how government can be the only arbiter of copyright. Registration incentives aside, copyright and intellectual property laws define the scope of the protections that you’re entitled to in the event that your music is stolen or used without your permission. Remember from last week that copyright was written into the body of the Constitution – it was deemed more important than the Bill of Rights as evidenced by the fact that it’s not an amendment – in order to “promote the Progress” of the arts. Without these laws in place, there could be no enforcement of any kind of protections, or limits on the usage of another person’s intellectual property.

So while it may feel nice to think that in a perfect world all artists and their works would be protected without the need for government oversight, the cold hard fact remains that copyright is governed by a series of laws; so if you want some redress in the even that your intellectual property is stolen, get thee to Form PA.

But How Do I Register?
As I said earlier, copyright registration could hardly be easier.

Whereas a composer used to have to get Form PA (for Performing Arts, which we shared with playwrights, filmmakers, choreographers, and recording artists), there’s now one online form for most types of registrations, Form eCO.

The advantages of eCO over the paper forms are pretty huge. First and foremost is the lower filing fee. Remember how I said earlier that I paid $65 for the registration of my Sonata? The paper version is still $65, but the online form is a whopping $35. Much easier on the pocketbook!

There’s also a much faster processing time thanks to the lack of paper. Transmission is immediate, nobody needs to sort through stacks of mail and forward them to the appropriate department, and there’s no sloppy handwriting to decipher. Everybody wins! Except maybe the post office….

You can also track the status of your registration, which is nigh on impossible with paper applications.

I just took a moment to go through Form eCO with one of my recent compositions, and it took me a whole five minutes to get through the registration. Definitions and instructions abound, and are very, very, very readable – they’re there to help you understand what you’re doing, not confuse you – and the form tailors itself to your needs – almost nothing is extraneous.

Alas, and alack, I would not recommend (again, this ≠ legal advice) registering works as a collection, unless they are unpublished. (If your works are available to the public, including through your own website, they are considered published.) The Copyright Office’s various publications and sets of instructions repeatedly say not to do it. That said, if you feel compelled to register your separately-published works as a collection, be it on your head.

To learn more about copyright and registration, check out the various publications available at the U.S. Copyright Office website. Also, I highly recommend Stephen Fishman’s The Copyright Handbook, available from the excellent Nolo Press. The ebook version of The Copyright Handbook is on both of my computers, my phone, and my tablet so that it’s available any time I might have questions. I’m a big fan of Nolo, which is a great online legal resource, with many free articles and lots of information. In fact, tonight, one of my favorite online book stores had an amazing sale, so I snagged a handful of Nolo’s books to add to my collection.

The Poor Man’s Copyright
“But $35 to register each work is still too expensive,” I hear you say. “Can’t I just use the Poor Man’s Copyright?” To which I repeat: copyright registration is required in order to file suit for copyright infringement.

For those of you unfamiliar with the term, the poor man’s copyright refers to the practice of sealing a newly-finished work in an envelope and mailing to yourself. The postmark on the envelope, according to this myth, establishes the date of copyright so that anyone attempting to infringe on the copyright at a later date will be foiled in court when the postmarked envelope containing the copyrighted work is produced as evidence.

All well and good, but again: without registration, there can be no infringement suit. And with registration, you’ve only wasted a perfectly good envelope and the cost of postage.

So let us hearken back two weeks to my exhortation to think like a business. Your registration with the Copyright Office is two things: an investment and insurance.

You’re investing in your security as a business, and in the future of your works. You’re also insuring – for a one-time fee, rather than a monthly premium – that should the unthinkable happen, you’re protected against the bulk of your loss. You may, in fact, come out ahead financially, depending on the severity of the infringement and the damages that you are awarded.

If you have catching up to do, do it. Do one piece a week if you can, or one a month, or one every other month. But get it done – protect yourself and your work.

Make copyright registration a part of your self-publishing process. And if you’re nervous about the forms, do a couple of dry runs first – fill some out for different works in your catalog, but don’t submit them, just shred them before doing it for real

So who’s registering works this week? I know I have a bit of catching up to do.

And I really love to get feedback in the comments section, via email, and on Twitter - they really keep me going on this project.

Thanks!

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The Composer’s Guide to Doing Business: Copyright Part 1

Thursday, January 19, 2012

This week’s installment is part one in a multi-part series on copyright that I’ll be writing over the next few weeks. This week, I want to tackle the basic terminology and concepts behind copyright before moving on in subsequent weeks on ways that composers can and do leverage their copyrights to generate income; the benefits of registering your copyrights with the U.S. Copyright Office; practical concepts like public domain, fair use, the doctrine of first sale, and the “poor man’s copyright”; and the impact of the Copyleft movement. I’ve written briefly about copyright before on this blog, so I’ll be rehashing a bit of old territory, but I’ll be going into greater depth in this multi-part section.

Copyright is a bit of a difficult concept for most people to get their heads around, in large part because it centers on the idea of intellectual property – the ownership of creative ideas, or the expression of those ideas. Things get a little more confusing for composers in some areas. My father – a smart man – has asked on more than one occasion: “When someone commissions you, who owns the copyright?” The answer is, of course, me, but when a CPA with a successful, 30-year career is fuzzy on issues of copyright ownership, you know it’s not a simple subject.

So let’s start with a basic definition of copyright and work from there.

What is copyright?
Copyright is a term that refers to a group of rights granted to a creator – we’ll refer to him as an “author” from now on, understanding that for our purposes “author” is interchangeable with “composer” – with respect to his creative works. Those component rights are:

• The right to make copies of the work
• The right to distribute copies of the work
• The right to make adaptations of the work
• The right to publicly display or perform the work

The right to make copies of the work is pretty self-explanatory. The right to make copies – copyright – get it? Eh? Eh? Upon the creation of the work (specifically when the work is fixed in some tangible form, such as written or notated on paper, or recorded by means video or audio), the author is the only person allowed to make copies of her work. This simple beginning is the lynchpin on which copyright is secured. All other rights, as you may notice as we go along, flow from this first right.

The right to distribute the work means that the author may sell or give away any copies of the work that she has made, yet she still retains ownership of the work, and others are prohibited from distributing the work without the author’s permission. So, after writing your latest string quartet, you aren’t giving up your copyright when you sell a copy of the score, or give one away – you’re merely distributing the physical copy of the work. The right to make copies and the right to distribute the work, when combined, form the basis of the publishing industry.

The right to make adaptations – most commonly referred to as “derivative works” – means that the author may arrange or expand on the original work in other, separate works, barring others from doing the same without the author’s permission. It’s this right that allows J.K. Rowling to continue to write in the world of Harry Potter, and prohibits other writers from writing new Harry Potter stories without Ms. Rowling’s permission. Similarly, a composer may make an arrangement of his piano piece for orchestra or brass quintet or guitar, but another composer may not make arrangements of that same work without the original composer’s permission. This right ensures that the intellectual property that Ms. Rowling has gone to such time and effort to create isn’t usurped by another writer who can’t be bothered to come up with his own world to write in.

The right to publicly display or perform the work allows the author to hang his painting, produce his play, perform his music, or read his novel or poem in public – preferably for a fee – and prevents others from doing the same without the author’s permission. This right is where we get our performance royalties from – ASCAP, BMI, and SESAC have built an entire industry around this one right. Performances via audio or video are also covered under this right.

Now, reading all that, it may seem as though these rights are actually more restrictive than helpful, and maybe the Copyleft folks have it right – copyright only serves to restrict the freedom of speech and dissemination of information. Uh, no.

First, a word about the origins and purpose of copyright in the U.S. (my apologies to my non-U.S. readers – this is all U.S.-based discussion).

Copyright was seen as so important to our Founding Fathers that it was written into the body of the Constitution itself. Article I, Section 8 of the Constitution reads: “The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. From this section comes the legal basis for copyright, patent, and trademark. Powerful little clause there, huh?

The basic purpose of copyright is to promote science and the arts by allowing authors to control the uses of their works. Imagine: if these rights weren’t protected by law, anyone could appropriate our work, slap their name on it, and not only call it their own, but attempt to make money from it. In such a world, what incentive is there to share our writings and scientific findings? (Let me point out here that copyright doesn’t extend to facts, but only to the individual expression of ideas. Consequently, writing a novel set in London doesn’t put London under copyright, only the particular story and characters expressed in the novel.) Obviously, there is a drive in many to share their work for the love of their art or the advancement of science, but the ability to generate income from that work is an even greater incentive to disseminate it. What better way to promote science and the arts than by allowing people to make a living at them?

And Free Speech, while a lovely banner to wave, isn’t an excuse to deprive artists of their right to control how their work is used and distributed. I’ve got a big section planned on Copyleft and these arguments, so let’s move on for now and get back to copyright basics.

You’ll notice that I used the word “permission” a lot in my explanations of the component rights of copyright. Permission is the key to what I often refer to as “leveraging copyright”. These permissions are called licenses, and are the basis for the entire music business.

Licenses
By giving another person permission to arrange your string quartet for full orchestra, or sell copies of your score on your behalf, or publicly perform your music, you are granting them a limited license to exercise one of your rights as an author.

Licenses can be granted for any individual right or group of rights, for any length of time that you might specify in your agreement with the licensee. Licenses can be exclusive – i.e., only one licensee may exercise those rights for a period of time – or non-exclusive – multiple licensees may exercise the same right at the same time. Licenses are the basis for royalties, publishing agreements, recording contracts, you name it. Basically, anything that will earn you money from your music is due to a license on your copyright.

When you join a Performing Rights Organization (PRO), such as ASCAP, BMI, or SESAC, you authorize the organization to license performances for you – in other words, to act on your behalf in exercising your right to publicly perform your work. So when an ensemble wants to perform one of the works you have registered with your PRO, the organization authorizes those performances and collects the fees that it charges for the licenses. This type of license is a very limited license – it extends to specific performances, and no more. Any performances of that work that aren’t licensed by your PRO are unauthorized, and a violation of your copyright.

When you grant another composer permission to arrange one of your pieces, you are granting them a license to exercise your right to create a derivative work. Any derivative work here, by the way, has its own copyright, which is now split between you, as the original author, and the arranger, as the author of the arrangement.

When a piece of yours is recorded, you’ll have a mechanical licensing agreement (and you should be paid a licensing fee). When that recording is broadcast, the broadcast is licensed, and you receive a royalty. When a piece of yours is used in a film, TV show, or commercial, the filmmaker etc will have to secure a synchronization license, for which a fee and/or royalty is paid to you.
If a piece of yours is recorded multiple times, you’ll be paid a compulsory license royalty.

All these opportunities for income – however big or small – are because of licenses.

Assignments
While licenses are for individual rights or groups of rights, an assignment is a little different. When you assign your rights to another person or a company, you give them all of your rights to a particular work, typically for the life of the copyright (we’ll get to that).

In the concert music publishing world, a composer typically assigns his rights to his publisher. He forfeits his rights to the work, and the publisher becomes the effective “author”. In exchange for this assignment of rights, the publisher then pays the composer a percentage – typically 10% – of its gross sales for that score. (Now, I have a lot of thoughts about this, as y’all may know, so obviously stay tuned for the posts I’ll have on Publishing and Self-publishing later in the Guide.)

Duration of Copyright
Works don’t stay protected by copyright forever. There’s an expiration date for each work’s copyright. Because U.S. copyright law has changed several times in the past century, most notably to extend the duration of copyright, it can be a little confusing when it comes to knowing what is still protected by copyright and what is in the public domain. Unfortunately, there’s not always an easy answer to this. It’s almost always easier to determine whether a work is still protected under copyright than to determine if it’s not.

For works written as of January 1, 1978, the duration of copyright in the U.S. is the life of the author plus 70 years. So for your own works, you’re fine until you die, and then some.

But when quoting or sampling other works, be careful and be educated.

Quotation / Sampling / Text Setting
Before I sign off for the week, I’ll touch on one final thing. Not exactly a copyright basic, but it ties in nicely with licenses.

If you find that you absolutely need to quote or sample another work whose copyright is held by someone other than yourself, you’ll end up licensing that portion of the original work. Likewise, if you set a text that isn’t in the public domain, you’ll end up licensing it from the publisher or author. Don’t play it fast and loose – just ask for permission. And if you don’t get it, move on. We’ll talk more about securing permissions in coming weeks, though in the meantime, ASCAP has some good resources for this very topic.

On that note, I bid you a fond farewell. Next week we’ll continue with more copyright! Yay!

Disclaimer: I’m not a lawyer, and these posts shouldn’t be interpreted as legal advice. They’re my interpretations and opinions. If you have specific questions about copyright, I highly recommend Nolo’s excellent publications on the subject, or consulting an intellectual properties lawyer. If you think you may be the subject of copyright infringement, absolutely consult a lawyer.

I write the Composer’s Guide here once a week, taking time away from my composing to do so. If you find value in this blog, please do leave a tip or a small donation on the way out. Thanks!

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CMA Conference 2012 recap

Thursday, January 19, 2012

So.

My experience at the CMA conference this year was…interesting, to say the least. Fruitful. Educational. A good time, overall.

This was, I should mention, my very first conference ever, so despite the fact that I didn’t get the whole three-day experience, I am no longer a conference virgin.

My day at the conference started at 8:30, when I arrived at the Westin, and signed up for a one-day registration. I’m not (yet) a member of CMA, and couldn’t make it to the previous two days of panels and networking, so I ponied up the $200 for admittance to the conference’s last day. (Admittedly, I borrowed the money from my parents since I’m a little cash-poor after the holidays and a hellish three visits to the dentist.)

I had a few minutes to kill before the panel that I was most interested in sitting in on started: composer Judd Greenstein, Zach Layton of The Issue Project Room, and Justin Kantor of Le Poisson Rouge on “Young Composers, Young Audiences”. Much to my chagrin, the description of the panel had changed in the program from what was originally listed on CMA’s website, and I very nearly decided to attend another discussion on fundraising, but I decided to stick with it – at the very least, I’d get to introduce myself to Judd, and maybe pick up something new in the discussion.

The panel was quite good. Judd pointed out that the topic had changed somewhat, but he was going to mostly ignore the change, and talk about marketing in broader terms before narrowing in on the “new” focus of social networking. Whew!

I don’t know that there were any major revelations for me in the discussion, but it was nice to have certain ideas reinforced: social networking shouldn’t be forced or fake, but should instead be natural and actually social; there should be a sense of reciprocity between artists and their followers on Twitter/FB; arts organizations are more successful when they collaborate and help one another than when they compete.

As the panel ended, and people started queuing up to ask individual questions of the panelists, I was suddenly struck with one of the dangers of conference-going: shyness. I hung back, desperately trying to think up a follow-up question for one of the panelists, and considered just slinking out the door. Fortunately, the objective part of my brain stepped in and said, “Just say hi, introduce yourself, say you enjoyed the discussion, and give someone your card. What’s the worst that will happen? You’ll get a polite smile and a ‘thank you’, and the world will keep revolving.”

So that’s what I did. I got in line, introduced myself to Judd, said that I agreed with his take on social networking and that I follow him on the Twitters, and handed him my card (making sure to get in a little mention of NewMusicShelf). Then I went on my merry way.

I tell this particular story because I knew that I was going to fall prey to shyness at some point (and I continued to on and off throughout the day), but I also knew that I had to power through it and actually talk to people I don’t know. It’s a very easy trap to fall into, so, Dear Reader, just know that if you happen to be in a similar situation, let your rational mind take the lead. No one’s going to throw your business card back at you, laugh in your face, and tell you to get lost, loser. This is a time specifically set up to network, and it should be taken advantage of.

So.

Onward to the CMA/ASCAP award breakfast, which was short and sweet. Alas, gluten-free me couldn’t really eat anything at the tables, so a glass of orange juice had to suffice for my morning meal. After the awards were given out came the requisite chitchat and networking – an important part of the event. I was able to reconnect with a few people who I’ve known for years, but stupidly haven’t kept in as close contact with as I’d like to have (slash should have) done.

Then came the exhibit wandering. This was the longest part of the day, both literally and emotionally. There were fewer booths than I expected, but my experience with such things comes from the Illinois Music Educators Association conventions from when I was in the All-State Choirs and Orchestra in high school, where the exhibit area was massive and packed. This was much more intimate. And, unfortunately for me, most of the booths were for artist management companies. To be expected, really – this is more for instrumentalists than composers – but a little surprising.

Here, my biggest challenge was again to engage, and not slouch around the periphery, which I did a fair amount. But, in my defense, most of the booths weren’t aimed at me, and one management booth attendant who struck up a conversation ended it VERY quickly (but politely) shortly after she learned that I was a composer/vocalist, which her company doesn’t manage.

I did, however, strike up several interesting conversations with folk at the publisher booths. My interest, obviously, wasn’t in finding a publisher for my works (I doubt that I’d ever want one), but in researching the way publishers operate for the Composer’s Guide, so I was able to make some good connections by asking to have coffee in the coming weeks and talk about how X publishing house works with composers. My advantage here, as I see it, was that I was looking for information and conversation, not for someone to Do Something for me.

Lessons learned in the exhibits:
1) It’s easier if you attend the conference with somebody.
I know that I would have had a much easier time approaching strangers if I had a conference-buddy there to help push me in their direction. I spent a little too much time checking my phone and sitting with my tablet in the Cyber Room (where, it seemed to me, the WiFi signal was fairly poor compared to other areas of the floor). While I used these times to psych myself up to approach someone new and to recharge, having someone there for support would have been better.

2) The last day of the conference is always the one with the poorest attendance
As I was told later in the day, all of the ensembles – the people I would have been most likely to press scores on – had been there the day before. A number of things kept me from making it on Saturday, so there’s little I could have done to rectify the situation. So, lesson learned for next year, when I plan on being in attendance for the whole thing.

3) Next year I’m not going as a “composer/vocalist”
There are a number of reasons for this. The biggest one is perception of agendas. Everyone has their affiliation printed on their name badge, which is worn around the neck (people tend to look at the badge on your chest before they look at your face, which I’m aware is completely expected at conferences). Someone with the name of a management company on their badge is seen as having X agenda, while those with publisher names have Y agenda. These are the people – from the perspective of the performer/ensemble member – that either can do something for you or want something from you. Management companies can offer you greater opportunities if you met their criteria, and publishers want to sell you music. Publishers may also want to create a relationship between you and one or more of their composers, which is to everyone’s advantage.

But a composer is there because they want something from you: “Will you play my music?” Now, while we’re the content providers in the equation, we’re also generally pretty pathetic about pitching our music, so we’re generally more of a nuisance.

So had I gone as, say, the NewMusicShelf, I still have the agenda of wanting you to play my music, but I’m also representing 19 other composers and their music.

I did plug the NewMusicShelf a LOT. I had more NMS cards on me than I had of my own (time to reorder!). And I unveiled a new thingie (which I’ll explain in a later post – it’s friggin’ cool!) that centered around NMS, and one of its cool new features.

After an hour lunch break, most of the attendants reconvened at St Luke’s Lutheran Church on W 46th for a concert of CMA commissioned works. I’m not the right person to review the concert, so I’ll just say: it happened, it was good, everybody enjoyed it.

Another hour break to breathe, then a cocktail reception prior to the final awards banquet.

I wasn’t invited to the banquet, but I was damned if I wasn’t going to get some free booze and make a few connections while everyone else was getting sauced. Being a musician, I know how awkward musicians can be – it’s not just composers – so a little social lubricant can go a long way. And did it ever!

It would be highly impolitic of me to go on about who I talked to, or what we talked about – you understand, Dear Reader – but the highlight of my day was that cocktail reception.

Just being a human being with other human beings, the tension and professional boundaries melted away by a glass of (free) wine, opened the doors for real things to happen. And those real things are: friendships. I’m honestly much more interested in becoming friends with people in the music world. Not because I expect that they’ll Do Something for me at some point. But because these are the people I’ll be working with for the rest of my career. The rest of my life. My colleagues.

And that’s how I view networking – not as trying to get someone to play my music. If it speaks to them, they’ll try to make it happen. If not, not. Instead, I see it as an opportunity to start a new friendship.

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Chamber Music America conference

Sunday, January 15, 2012

I’m poking around the Chamber Music America conference today. Meeting some fun and interesting people. I’ll attempt to consolidate my thoughts and impressions over the next few days and have something up before the Composer’s Guide goes up this week. This is wonderful research for the blog, by the way. Just sayin’.

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The Composer’s Guide to Doing Business: The Benefits of Entrepreneurship

Thursday, January 12, 2012

Welcome to week two of The Composer’s Guide to Doing Business. I’d like to spend this week addressing some basics and laying a bit of groundwork before we launch into some of the meatier topics I have planned for the coming weeks. The two things I want to address first are:

1. The importance of entrepreneurial thinking to a composer
2. The attitudes that shape our views of money and business

Entrepreneurial Thinking
Composers – artists of any stripe, actually – as a general rule have a love-hate relationship with money and doing business. More often than not, we’re willing to spend whatever it takes to get the latest notation software; to prepare and mail materials for whatever award / grant / competition we’ve set our sights on; to travel to this or that residency or performance; to buy the computer / printer / speakers / piano / keyboard / office supplies we need to write and produce our scores.

Yet when it comes to the thought of taking in money, we’re strangely repulsed at the idea. Some of us flat-out hate the thought of charging money for a copy of our scores, or ascribing any monetary value whatsoever to our art, based on some moral code that we’ve devised (or more likely unwittingly inherited) that places all art outside the realm of the almighty dollar. And some of us are just scared – pardon my phraseology – shitless at the prospect of asking another human being to part with their hard-earned cash for something that we just made up!

Yet that’s precisely what we need to learn to do.

When someone asks us, “How much for a copy of the score to [title of your piece here]?” we need to be able to give them a number. Because that person has just offered us their hard-earned cash in exchange for something that we just made up, purely by virtue of the fact that we did just make it up, which is no insignificant accomplishment.

As I pointed out last week, and I’ll probably point out every couple of weeks here until you’re all sick of it: you (or your parents) probably dished out a substantial amount of – to keep a good phrase going – hard-earned cash for your musical education. You probably laid out more cash for Finale or Sibelius or whatever your notation software of choice happens to be. Then there’s the computer that runs said software – not cheap. The printer – hell, let’s join the 21st Century and give you an all-in-one – to print/scan/copy your scores. For the tech-savvy among you: the MIDI keyboard controller. Your speakers – gotta hear that MIDI! The desk that it all sits on. And for those of us that insist on having one: a piano (or three, as the case may be for some of us with a problem [hides face in shame]).

These, folks, are commonly referred to as “investments”. You (or your parents or other loved ones) have invested a LOT of money into your career as a composer. So whether you set out to be or not: You are a business.

And like any other type of business, you have “overhead” – recurring costs that are necessary to keep your business in operation: the costs of paper, toner, electricity, the internet connection you’re using to read this, postage for those competitions you insist on entering every year, etc.

So I think it’s high time that we started thinking a bit more like the businesses that we are.

And what is the basic goal of any business? To take in more money than we spend. To operate “in the black”, as it were. In other words, to make a net profit.

I’m sure that as I write the Guide, I’ll be littering it witch caveats and disclaimers – little notes to remind you that these are my interpretations of the way things are, and my suggestions for how I think they should be. This is one of them. So as I talk about net profits, investments, overhead expenses – all the fun businessy terms that I’ll do my best to explain as we go along – I’m not expecting that they’ll come to dominate, or even make an appearance in, the way that composers discuss or think about their works. “Hey David, what did your latest quartet net you?” No thanks to that. But these things should be a part of an entrepreneurial composer’s personal stock-taking.

Why?

Well for one, shit happens. Like audits. Those vague, menacing spectres that are always mentioned in hushed tones to scare you….mostly away from attempting to make any money at all at composing. But if you know what your business expenses are, and you know what you can claim as business equipment (remember those speakers, the computer, keyboard, printer, and desk? oh, and the three pianos?), you’re already in much better shape than most. By being aware of your career as a business, and being responsible about record keeping, audits, while still not anyone’s favorite thing in the universe, can be made a lot less stressful.

Also: fires and natural disasters. If you do your composing in your apartment like me, you have renter’s insurance (or whatever type of insurance suits your situation) in case the unspeakable happens. And when I say “you have renter’s insurance”, I mean, “If you don’t have insurance, get some now!” (Seriously, your Performing Rights Organization – ASCAP, BMI, SESAC – has discounts for home and renter’s insurance on their member benefits pages. Check them out. It’s cheap, and it’s smart.) So if something awful should happen, you’ve got your business equipment insured, and that’s one less thing you have to worry about in an awful, stressful time.

All shit-happens-doom-and-gloom aside, there will also come times in your career when you’ll need to do an effective cost-benefit analysis.

For example, Illinois State University recently green-lighted a full recording of my choral works. The elite chamber choir, which I used to be a member of in my undergraduate days, will be recording all of my choral works to-date over the next few years. I proposed the project to them after having done an extensive analysis of what the project would cost balanced against a conservative, multi-year projection of CD and download sales; and, after having presumably done the same analysis – albeit with more experience to draw from -, they agreed to the project. We still have some points that need negotiating, and contracts are yet to be signed, but the project is a go. And I flatter myself to think that one of the reasons that the School of Music agreed to the project – aside from our long-standing, fruitful relationship – was that I could reasonably demonstrate that the project would be mutually beneficial – both monetarily and in terms of our individual goals (another discography credit to my name; a marketing tool that could open doors to more choirs for me; a recruitment tool for the School; and a demonstration to the School’s/University’s donors that ISU’s alumni are active, successful, and still involved with the school).

I’m also always coming up with other hare-brained schemes like the choral disc, but ones that often don’t get off the ground because the expenses would most likely far outweigh the potential return. One that I’d love to make work would be a concert tour of my art songs a la the upcoming tour by composer Dale Trumbore and soprano Gillian Hollis of Dale’s beautiful art songs. Presumably Dale and Gillian planned their tour weighing the costs of travel from city to city against the benefits that they anticipated from the performances and CD sales.

Dale’s CD and her tour are both excellent examples of a composer having an entrepreneurial approach to her career, and both will only benefit her in the long run.

Attitudes
With only about 700 words left before I reach my weekly word limit, let’s talk about some of the attitudes that often cripple us when it comes to thinking about our composing careers as actual careers, where they come from, and how we can combat them so that we can be a little more…mentally healthy.

1) “What’s your real job”?
One small, but soul-crushing question that most of us have to face regularly after we say that we’re composers is: “Yeah, but what’s your real job?” And most of us sheepishly start talking about the thing we do to pay the bills while we’re trying to get our composing careers in gear. It’s this ego-undermining-yet-well-meaning question that gives me my little thing about day jobs.

As I mentioned in the comments section last week, I’m going to have a multi-part section on The Composer and the Day Job (or some such title) in coming weeks/months, but in my rapidly-diminishing word count, I’ll just say that for those of us with day jobs who consider composing to be our primary career regardless of our current primary source(s) of income, remember that composing is a “real job”, and there’s no shame in supporting yourself in a job that is not your primary goal in life.

I’ll be discussing this idea in much more depth in later chapters, so allow me to leave this where it lies for the moment, and consider for yourself if/how this attitude may be affecting you.

2) Teachers
Now don’t get me wrong – I’m not knockin’ teachers. But we get our attitudes somewhere. We get our politics from our parents (sometimes as a reaction against our parents’ politics), and we get our career prejudices from our teachers. It’s a pretty linear progression.

And sometimes we need to examine the ideas we inherit from our teachers, because those ideas aren’t always appropriate to our generation, just as the ideas that our teachers inherited from their teachers weren’t always appropriate to their generation. And as the concert music scene evolves as rapidly as it has been with publishers taking on fewer and fewer living composers, the economy cutting into so much grant and award money, and the internet and social networking reshaping the way we interact with our audiences and performers, a lot of those ideas are going to need to be questioned.

3) The Romantic Era
I cannot tell you how much I loathe the idea of Composer as Tortured/Sensitive Soul. Gag me! It’s really obscene how much this idea has poisoned artists over the past two centuries.

We’ve become reliant on others to do the business things for us that we can easily do ourselves, and in so doing have allowed our ability to be treated like rational adults to be completely undermined. Rather than content providers (to be a little blunt) who should be adequately compensated for our work, we’re seen as a nuisance by the established content distributors (publishers), who – when they do notice us – offer us horrible contracts with pitiful terms because we’re not expected to know better. And…we don’t. Because we’ve let ourselves become too removed from the “real world” because we indulged ourselves in the Romantic notion that an artist should lock himself in his garret to write and abscond from the world around him.

I think that this is the most dangerous of these attitudes because it’s quite far-reaching, and has penetrated far beyond our own industry.

4) Selling Out
I was part of an online conversation a few months ago in the comments section of an article over at the NewMusicBox that sort of got me started on the path to writing this series. It certainly sparked a number of blog posts that you can find here with little difficulty; but there was one I never got around to writing, and it’s about the phrase “selling out”, which came up in that discussion. Unfortunately, all of the comments were lost just as the debate was winding down when NMB overhauled their site, and the comments from previous articles were lost to the ether. Pity, ‘cos it was one hell of a discussion, and I wish I could refer to it more specifically throughout this entire series.

But one commenter, because the topic of the article was selling scores rather than giving them away, equated the idea of commerce with that of “selling out”. I don’t think I’ve ever been as angry as I was when I read that particular comment. I pride myself of my civility, but I was really ready to take this person to task because I have such strong feelings about the phrase “selling out”. I think it’s petty, uncharitable, and born solely of jealousy at another artist’s success in the face of one’s own lack of success.

I also think that the spectre of being labeled a “sellout” is a major stumbling block for some composers when it comes to trying to achieve success in our field. I’m sure we can all conjure up names of composers who have been – for whatever reason – labeled as sellouts, and see why this fear is so prevalent. I’d really like to see this attitude disappear and the term “sellout” wiped from our vernacular because it’s so uncharitable toward our colleagues.

5) What else?
There are certainly many more of these attitudes lurking in the crevices of our music-addles brains than I’ve managed to cover here. And since I’ve already blasted through my 2000 word limit for this essay despite my extreme brevity in addressing some deeply-ingrained and incredibly-subtle negative ideas that we have to contend with, I’d like to continue the conversation in the comments section below. Are there other things I’ve missed? Anything I’ve overlooked? Any causes or solutions that you can see to any of these pervasive issues?

See you in the comments, and I hope to see you back here next week!

I write the Composer’s Guide here once a week, taking time away from my composing to do so. If you find value in this blog, please do leave a tip or a small donation on the way out. Thanks!

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The Composer’s Guide to Doing Business: Introduction

Thursday, January 5, 2012

What is this and who is it for?
Welcome to my new blog series, The Composer’s Guide to Doing Business. Every Thursday, I’ll be posting an essay on the business aspects of the concert music world as they pertain to composers. My goal is to create a resource for concert music composers to allow them to take control of their careers.

For years I’ve watched many of my fellow composers – those my own age and those who have been around for much longer – flounder when it comes to doing business. Many are downright terrified of the thought of negotiating a contract. Most don’t really understand the laws and organizations set up to protect and serve them. And few know how to go about attempting to make anything resembling a living off of the work that they do.

All of these conditions are because of one thing: fear. We’re afraid of trying to negotiate contracts, of grappling with commerce, of taking the driver’s seat in our careers. Why? Mostly because we’ve never been taught these things, and wouldn’t know the first place to start looking to find out. We’ve probably only ever been taught that contracts are binding, which makes us artsy types feel shackled and claustrophobic, and summons up the phrases “set in stone” and “signed with blood”. The thought of commerce makes us feel slimy because we’re artistes. And even if we didn’t feel icky about it, we wouldn’t know the first thing about setting up our own publishing company or finding ways to make sales – because no one ever bothered to teach us how. Why were we never taught these things by our teachers? Frankly, because they almost certainly didn’t know, themselves.

It’s my goal to try to educate my fellow composers in these types of areas.

Because honestly, contracts aren’t that scary. Negotiating may be a little intimidating for some, but with a bit of good will (and a little bit of good will can go a LONG way), the whole process can be completely painless. And what would you rather have? A contract in place that spells out your and your commissioner’s responsibilities in advance? Or a nebulous verbal agreement that leaves everything open to misinterpretation, so that if something goes wrong, neither side is happy, and nobody knows how to make it right?

And frankly, commerce isn’t that difficult, either. With a little bit of know-how, or knowing someone with that know-how, it’s easy to set up a way to get your scores in front of people who want to pay for them. The record keeping is easy, and I intend to offer some suggestions for how to make it as easy as possible.

And taking control of your career is the only way that you’re going to manage to get your music in front of people who want to play it. Nobody – and I mean nobody – is as well-equipped to make people interested in your music as you.

Why am I writing this?
One of my biggest pet peeves is hearing a composer say that they don’t care if people buy their music – they just want to lock themselves away and write. Once the initial rage subsides, I (attempt to) calmly ask them if they studied composition at a college or university. And because the answer is invariably, “yes”, (and almost as invariably, they’ve received a Master’s or a Doctorate), I ask if they’ve managed to pay off their student loans yet. Because unless we’re very lucky, we’ve all racked up some hefty loans. I feel lucky that mine only ever totaled around $20k. I have a lot of friends who owe a LOT more. So I always wonder: if you’ve spent that much money and probably racked up that much debt to educate yourself in a field that you don’t intend to make any money with… I can’t even properly form the question to complete that thought – my brain seizes up.

Traditionally, we’ve been told that maybe only a lucky dozen or so composers can manage to actually make a living without having to have a day job or take a position in academia (why most composers don’t consider this to be a “day job” baffles me to this day – it’s the epitome of a day job, only generally with crappier pay balanced by more time off – but more on that in later sections). Yet [pullquote]there’s a whole new generation of very, very young composers making a substantial living from commissions and royalties[/pullquote]. And I think there’s room for a lot more of us in this new world, not only despite, but because of, the major changes that have shaken our economy in the past few years.

The composers who will thrive in this new economy will be the entrepreneurial ones. The ones who don’t rely on the whims of grant committees or award panels, but blaze new paths by forging personal bonds with their audiences and creating their own commissioning and performance opportunities.

Yes, but why am *I* writing it?
A brief word about what I feel my qualifications are to write this series. First off, I’m an active composer – I’m completely steeped in the field, so I understand the bizarre and often dysfunctional nature of the concert music world.

I’ve also worked for a number of years in the world of finance. I spent several years working in the alternative fund services area (read hedge funds – specifically fund of funds [I know, don’t blame me for the economy!]) of HSBC Bank, and have experience managing Accounts Payable and Accounts Receivable for a major non-profit theatre company in NYC. There’s no better way to understand good record keeping and good accounting practices than to work in an arts organization with a twenty-plus-million-dollar operating budget and go through a yearly audit process.

I’m also the founder and operator of NewMusicShelf.com (http://newmusicshelf.com), an online digital distribution company for self-published composers. I created the business in May 2010 with $100 and a burning need to make a difference. There are currently 20 composers selling 300 of their works through the site, and I’m always getting new requests to join.

I also ran a successful concert series in Manhattan (the Tobenski-Algera Concert Series) for five years. The series highlighted young and emerging composers, and always got butts in the seats. And, not for nothing, after our last season, we had a budget surplus of nearly $1,000, which is pretty great for that kind of small endeavor.

Recommended Reading
A number of different books and blogs have led me to start on this project, and I highly recommend them to everyone, be they composer or otherwise. One of my biggest suggestions to young artists of any stripe is to [pullquote]learn about the other arts and how business is done in other areas[/pullquote]. Consequently, I’ve spent the past year or more engrossed in the daily upheavals taking place in the book publishing world. It’s much of my reading there that led to the creation of NewMusicShelf, my opinions on various business structures and their efficacy in music, and the way that I do business in my own career and advise my colleague friends when they ask my advice (which honestly – and startlingly to me, at least – is remarkably often).

My main suggestions for reading in the book publishing area (which I think closely mirrors the concert music world in some areas while being wildly divergent in others) are the blogs of Dean Wesley Smith (http://www.deanwesleysmith.com/), Kristine Kathryn Rusch (http://kriswrites.com/), and J.A. Konrath (http://jakonrath.blogspot.com/). All three have consistently discussed ways that authors can (read, should) go about taking control of their careers, as well as offering commentary on the near-daily fluctuations in their industry. Because the book publishing and the music publishing businesses are based on the same premise (sell copies of intellectual properties licensed from individual artists), I find that the observations offered in these blogs are really appropriate to our industry.

Ms. Rusch has also published a book titled The Freelancer’s Survival Guide, which is an almost direct inspiration for this series. The Freelancer’s Guide is available in a variety of formats: it’s available for free in blog format at http://kriswrites.com/freelancers-survival-guide-table-of-contents/, as well as in ebook format and in print. The structure of her book, and the way she went about writing it, you’ll see obviously mirrored in this project. In addition to the free blog post aspect, I too will be compiling my posts and editing them into book form when the project is over.

In the realm of music, I highly recommend David Cutler’s book The Savvy Musician (http://savvymusician.com/). I read Mr. Cutler’s book with a notebook and pen in hand, making notes whenever I had an idea for a new project or a new way of approaching the business. There were a quite a number of chapters where I couldn’t make it more than a few sentences without having to stop to jot notes for a solid 15 minutes. I remember one hour-plus-long subway ride from upper Manhattan into Brooklyn (it was a weekend) during which I was reading the book: I sat down and read a sentence or two, then scrambled for my notebook, and spent a solid twenty minutes sketching out a project that I’d only just thought of because something in those words sparked something in my brain. Two more sentences, and I spent the rest of the trip outlining promotion for the project, along with details on how to make it as effective as possible. So trust me when I say that this is an inspiring book.

Goals and Expectations
I think it’s important to set goals for projects such as this. My goal, frankly, is not to reach every composer on the planet and revolutionize the industry. Although that would be awesome, it’s not a realistic goal. Nor is it an actual “goal” – it’s a dream. Something I have no control over, but that I’d like to see happen. A goal is achievable. A goal is completely under my control. A dream, while potentially achievable, is not completely within my control.

Consequently, my long-term primary goals for the project are to a) finish it, and b) edit the blog posts into a book, which I’ll then offer in both print and ebook versions. These goals are completely under my control. I’ve planned out the structure of the series (although I have built-in wiggle room and room for expansion), and I know how I’m going to make it through – by setting short-term goals that lead to the end result. My short-term goals are the weekly ones – writing another post, getting it on the blog on Thursday, managing the discussion that I hope it sparks in the comments section. (And please do make use of the comments section!)

I’ll also be including, as Ms. Rusch did, a PayPal Donate button with each post. The reason for my including the button is that, although I very much want to write the book and consider it to be a labor of love, writing these weekly posts takes time away from my composing, which is what I Do with a capital D. So with each post, I’ll ask that anyone who found that particular essay useful to please leave a tip. It subsidizes my time away from composing, and it gives me a solid incentive to see the project through to its conclusion by telling me that someone is benefiting from it and appreciates the work I’m doing.

With that, I leave you with a parting request: please drop by the comments section below and let me know what topics you’d like to see covered in this series. Currently on the list are: copyright, royalties, performing rights organizations, publishers, distributors, self-publishing, keeping records, managing money, negotiating contracts, commissions, and marketing, to name a handful. Your feedback and involvement is going to be an integral part of the series, and I hope that the comments section can be a place to share questions, answers, triumphs, and ideas.

I’ll see you all back here next week with my first full essay on being an entrepreneurial composer!

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Filed in Blessays, Music Business, The Composer's Guide to Doing Business | Tagged advice, blogs, budgeting, business, career, commission, commissions, Composer's Guide, contracts, dignity, Doing Business, income, music business, NewMusicShelf, publishing, rights, royalties, sales, self-publishing | 216 views | Comments (9)

Doing Business: Copyright

Friday, November 4, 2011

A composer colleague of mine asked me to say a few words on copyright, on which I think I have a few reasonably intelligent things to say.

Copyright, in my opinion, is a much-maligned, almost-always-misunderstood, wonderful necessity to creative endeavors. That said, it’s very easy to misunderstand the concepts behind copyright, and there’s much in modern society to make things even more confusing.

First, what is copyright? Copyright is a group of rights automatically granted to the creator of an intellectual property (for our purposes, a musical work). At its most basic, copyright is the right to create and distribute copies of the original work. (And let me just point out that it’s copyright, not copywrite – a work is not copywritten, it is copyrighted.) However, there are subsidiary rights that come with the “right to copy”, such as:

• the right to create derivative works
• the right to perform or display the work publicly
• the right to transmit or display the work by radio or video
• the right to sell or assign all or a portion of these rights to others

These are some awfully important rights, and they’re often overlooked.

What makes copyright so important is that it allows composers to control when and how their works are used, and in the process hopefully make a living from it. Let me offer a few examples.

Publishing
A composer can assign (all or a portion of) her rights to a particular work to a publisher in exchange for distribution and a royalty on sales. The publisher now owns the right to create and distribute copies of the work and generate a profit from those copies. The composer, in exchange for this assignation of rights, is entitled to a royalty on each sale. We’ll not go into the details of royalties, and my opinions on assigning rights to a publisher, in this essay – I could go on for ages, but that’s not what we’re here for. This is the most common way for a composer to leverage her copyright to earn money.

Slightly more complicated is the assignation of rights to a record label. Copyright for audio recordings (or phonorecords, as they’re outdatedly referred to in copyright law) is in some ways counterintuitive, and I’m still learning the ins and outs of some of the finer points. Suffice it to say that the copyright to the piece of music remains with the publisher or composer, but the copyright for the recorded performance belongs to the record label. The composer and publisher are entitled to royalties in this case, as well, although they’re much, much smaller.

The first recording of a work is the only recording that the original copyright holder has any substantial control over. If a piece has never been recorded and commercially released (archival recordings, meaning recordings that have never been released for sale on any level, don’t count as a commercial release, and don’t count toward/against this requirement), its composer or publisher may refuse permission to any performer or label that wants to record it, and the composer or publisher may negotiate mechanical licensing fees, royalty rates, and other fees associated with the use of the work for the recording. However, once that first commercial recording has been made, any other performer or record label may record it without permission, and are only required to offer a “compulsory mechanical license fee”, which is a whopping $0.091 for works under 5 minutes, and $0.0175 per minute for works over 5 minutes. It’s not a lot. At all.

You can see why leveraging control of copyright can be important here. Let’s imagine that I allow a pianist to record one of my works and make it commercially available on a disc. The performance isn’t very good, and the recording quality is sub-par at best. It sells maybe five copies a year. I negotiated a fair royalty rate with the pianist, but with such pitiful sales, it doesn’t matter since it’s not selling anyway, and the recording is bad enough that I don’t want it representing me, so I don’t actually want it to sell. Along comes Deutsche Gramophon (since we’re playing out a litle fantasy here), and they decide they want to put it on a compilation disc. Since the piece has already been commercially recorded and released, I can’t negotiate a decent royalty, so when the recording turns out fantastic and sells like hot cakes (ahh, fantasy), I’m paid literally pennies per copy. (This scenario could then be turned to my advantage, but that’s not a copyright issue; instead it’s a marketing one – another discussion for another day.)

I should point out here, albeit briefly, that there is a substantial difference between performance royalties, print royalties, and mechanical royalties. Performance royalties are paid by a Performing Rights Organization such as ASCAP, BMI, or SESAC, and are paid for live performances of your works. Print royalties are paid directly by your publisher (if you have one), and are for sales of scores and printed music only. Mechanical & digital royalties are paid through a mechanical licensing agency like the Harry Fox Agency (there are several others) or directly from the record label/recording artist if you aren’t registered through an agency, and are for CD and MP3 sales only. Some finer points: mechanical/digital royalties get paid only for sales because CDs and MP3s are assumed to be for private use only (listening in your home, your car, on your iPod). However, when a bar plays a track from a CD, or a piece is broadcast on the radio or on TV, it suddenly becomes a public performance, and is paid as a performance royalty through your PRO. “Live performance” isn’t limited to human beings on stage in front of other human beings; it is any public display (remember that in the bulleted list above?) or presentation of the work, and is consequently paid as a performance royalty.

Derivative Works
Because I’m the owner of the copyright, I’m able to make derivative works based on the original piece. I can take my piano piece and arrange it for orchestra or Pierrot ensemble or string quartet. I can also create an orchestral suite on themes from my latest opera. Since I created the original work, I have the right to do with it as I please.

However, when I assign those rights to a publisher, they have the right to create derivative works – or, more likely, hire an arranger to create derivative works. I’m now in the position of having to ask my publisher for permission to arrange a piece that I wrote in the first place.

Let’s move outside the scope of music for a moment, and think about novels to explain a bit further. If I were to write a short story or novel centered around a young wizard named Harry Potter, I’d be in a world of hurt because that character – that intellectual property – is owned by either J.K. Rowling or her publishers (it depends on the wording of her contract, which I’m obviously not privy to). Any fiction that anyone might write starring the Boy Who Lived would be considered a derivative work, which is the purview of copyright.

Similarly, any piece of music I may write that makes use of a theme or themes by Benjamin Britten would be considered a derivative work. If I were to orchestrate one of his piano pieces, I would be creating a derivative work, and consequently violating his publisher’s copyright.

Conversely, if I were to authorize the creation of a derivative work such as a choral arrangement of an art song, I would still be entitled to a royalty since I’m the creator of the original work. I can authorize arrangers to create multiple versions of a handful of my pieces with varying instrumentations, and offer them for sale under my own publishing company. I’d owe the arranger a portion of the royalty (depending on my contract with him), but I would in turn have a larger catalog to leverage. Or, you know, I could do it all myself and not owe anyone else royalties.

Performance and Transmission
One of the cornerstones of a composer’s income, aside from commissioning fees, is performance and broadcast royalties. Every time a piece of mine is performed publicly, I’m entitled to some sort of royalty. If this provision weren’t a part of copyright law, my works could be performed anywhere and by anyone without benefiting me in the slightest.

Now, some composers may not have a problem with this because they’re just happy to have their works out there. However, the problem isn’t just that I’m not making money off of a particular performance: it’s that the performers/presenters/performance venues are profiting from my works while I’m not. Allowing non-creators to profit from the creator’s work creates a huge inequity. In fact, it creates a huge disincentive for the creators to stop creating. If everyone but me makes money off of my work, why should I continue to do it?

And there, folks, is the crux of copyright in the modern age. By not enforcing copyright, creators are put at a huge disadvantage. I, for one, would appreciate being able to make a living at the career that I’ve put over half of my life into. Just because I love writing music doesn’t mean I should do it without compensation. This starts to segue into another conversation about commonly held views and misconceptions about creators. And it’s a conversation that needs to be had – loudly and in many venues.

Where do the waters get muddied?
A few things start to muddy the waters here, and it can be difficult to discuss them rationally, or to separate the exact problem from what seems to be the problem.

One problem that people have with copyright is that it seems to benefit large corporations more than it does the individual. Now, in many cases this is true. But not true enough to abolish copyright, as some would like to do. One of the difficulties here is that corporations have the resources to lobby congress to revise copyright law to benefit them more and more. It’s happened more than once. The Disney corporation and the Gershwin estate have had an active hand in pressuring members of congress to extend copyright further and further so that they can maintain a hold on their previously-copyrighted properties. These extensions do next to nothing for individuals. I, for one, will never benefit from the extensions, because I’ll be at least 70 years dead by the time my copyrights expire. My estate might benefit from them, but not to the degree that Disney will benefit from owning Mickey Mouse or the Gershwin estate from owning Rhapsody in Blue. This seems to be the public face of copyright to most. I’ve seen lots of comments threads in lots of blog posts and news outlets decrying copyright as a purely corporate tactic to make even more money at the consumer’s expense. Because they don’t understand the true nature of copyright, many people can’t see how it benefits the individual and encourages creation.

Even creators themselves often have issues with copyright because they don’t really understand it. Many young composers and artists see copyright as an impediment to their being able to get their works seen and heard. It is only if you make it. One of the ways that people are trying to loosen copyright is through things like the Creative Commons license. I know more than one composer who mistakenly thinks that Creative Commons is a substitute for copyright. Clearly they don’t understand what they’re talking about. Even Creative Commons makes a big point of saying that it’s not a substitute for copyright. It’s an appendage to copyright.

Creative Commons is a licensing tool. Notice that it’s called a Creative Commons license. Take a look at the different types of CC licenses and then take a look at the rights granted by copyright law. Look familiar? If not, look again. CC allows a creator to grant particular rights to non-creators – various distribution rights (with attribution, without attribution, for/not for commercial use) and rights to create derivative works.

I, for one, would never use a CC license with regards to my work. I prefer to take things on a case-by-case basis, and grant permissions where I deem it appropriate. But that’s my own choice, and isn’t right for everyone. I’ve had pop remixes done of some of my art songs, I’ve had my scores used as the basis for an entire body of work by a visual artist, and I’ve had one of my choral works recorded professionally. In all three cases, I’ve assigned rights as needed, and had absolutely no problem with legal issues. People who want to use my works in some way come to me, ask my permission, and I grant it. It’s that easy. I don’t need a one-size-fits-all license from a faceless entity, thanks.

Obviously this isn’t all there is to know about copyright. There’s lots I don’t know, and that I’m still learning. But I do know that copyright is the thing that will allow me to generate income from my works and actually have a career as a composer.

Disclaimer: I’m obviously not a lawyer, and my writings here shouldn’t be construed as legal advice.

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Filed in Blessays, Music Business | Tagged business, career, copyright, corporations, creative commons, dignity, fairness, greed, income, licenses, music business, publishing, recording, rights, royalties | 35 views | Comments (0)

Fanfare for the Little Green Man

Wednesday, October 19, 2011

Every so often, you run across an old piece that you’ve forgotten about, and that you really shouldn’t have. That happened today while I was home sick from the day job. I was clicking around on my desktop, and there, nestled in my folder marked “Chamber Works” was a long-forgotten (about two years) set of pieces that were supposed to be a slightly larger work. For several reasons, the full piece never came to fruition, although I’d still like it to. Since there are more pressing projects on my plate, it will have to stay on the back-burner for a while. In the meantime, I’m releasing the existing movements separately.

I spent about an hour cleaning up the second of the two movements, and am offering it up by itself: Fanfare for the Little Green Man for violin duo.

Here’s how my computer says it sounds:

And, of course, it’s available at the NewMusicShelf!

Popularity: 2%

Filed in New works, NewMusicShelf | Tagged Fanfare for the Little Green Man, NewMusicShelf, violin duo | 22 views | Comments (0)

The Composer’s Guide to Doing Business: Copyright Part 4

The Composer’s Guide to Doing Business: Copyright Part 3

The Composer’s Guide to Doing Business: Copyright Part 2

The Composer’s Guide to Doing Business: Copyright Part 1

CMA Conference 2012 recap

Chamber Music America conference

The Composer’s Guide to Doing Business: The Benefits of Entrepreneurship

The Composer’s Guide to Doing Business: Introduction

Doing Business: Copyright

Fanfare for the Little Green Man

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