CLASS ELEVEN
FOREIGN ISSUES IN MUSIC PUBLISHING
Reading:
Sobel: Foreign Publishing Revenue Chap 10
Wixen: Subpublishers, Chap 8
I. Importance of Foreign Music Publishing Income
We live in an increasingly inter-connected world where music created today in the United States can be heard tomorrow halfway around the world. Most of the developed countries have systems in place for the orderly collection of music publishing income just which are similar to those that exist in the United States. However, it takes knowledge and effective representation abroad to insure that as a publisher, you are able to access your rightful share of those international revenues.
American based Warner Music Group reports that in their fiscal year ending September 2009, Music Publishing revenue was split 41% domestic and 59% international. Total World Wide Publishing income for 2009 was estimated at $8.9 billion with North America representing $3.6 billion of that total or about 40%. So it appears that at least 60% of the music publishing income “pie” is earned outside of the United States and Canada.
The Basics: Back to Copyright
For copyright purposes, a composition is governed first by the law of the country in which is it created. A composition created in Italy will be governed by the law of Italy and registered there. Conversely, a composition created in the US will be governed by US Copyright law, and registered in the US. Only one copyright registration per composition is permitted, and that is the country of origin.
International Copyright Recognition:
There a number of international agreements which seek to provide agreed standards of protection under copyright laws in the countries which are signatories to these agreements and treaties. The best known and most widely recognized such treaty is the Berne Convention which is signed by over 150 countries world wide. Under this agreement, author-residents of signatory countries, are entitled to enforcement of their copyrights in the other member countries. The degree of protection may vary depending upon whether the countries involved have agreed to National Treatment for foreign authors, which gives them the same treatment as nationals in that country, or Reciprocal Treatment which is affords the foreign resident no greater rights than they would have in their own country.
II. The Route to Foreign Collections for US Music Publishers
A. The Role of Sub-Publishers (excerpted from Todd and Jeffrey Braebec)
Each country has its own unique music publishing landscape and requirements which are necessary to understand to effectively insure proper collection of all monies that the copyright holder is entitled to receive. Naturally the experienced publishers in those countries understand how to properly navigate these requirements. When a musical composition is earning, or has the potential to earn, music publishing income in foreign territories, the most chosen path is to enter into an agreement with a local publisher for the composition(s) which assigns administration rights to those compositions in that territory. The local publisher who represents the foreign publisher’s catalogue will be called the “sub-publisher”. The agreement in which a writer, writer/performer, or U.S. music publisher grants the right to represent musical compositions for the purpose of exploitation of their compositions in countries outside the United States is known as a "sub-publishing agreement". If the US publisher, is acting in that capacity for a foreign publisher, then the US Publisher becomes the “Sub-publisher” for the foreign based publisher. The most important provisions of foreign sub-publishing agreements are reviewed below.
(1) Term
The standard duration of sub-publishing agreements in today's market, however, is normally from 3 to 5 years, with 3 years being the minimum accepted by many foreign royalty collection societies.
The term of an agreement is one of the many negotiable items contained in any sub-publishing agreement; variations of the term are based on the amount of advances given, retention rights for local cover recordings, the right to collect "pipeline" royalties (monies earned prior to the expiration of the term of the sub-publishing agreement but not yet paid by the music user until after the end of the term), released-album guarantees, extensions if advances have not been recouped, rules of local performing rights societies, suspensions due to breaches, and extensions based on the non achievement of guaranteed earnings plateaus.
(2) Royalty Percentages
The compensation received by the foreign representative is based on a percentage of the monies generated by the songs specified by the agreement. For example, if a U.S. publisher enters into a sub-publishing agreement with a foreign publisher for the territory of Germany, the German sub-publisher would receive a percentage of the royalties earned by the compositions from CD and tape sales, television and radio broadcasts, advertising commercials, motion picture uses, and other exploitation that actually occurs in Germany.
If a certain catalog is successful enough to generate uses and income by its very nature, the fees chargeable by sub-publishers may be in the 10% to 15% range, since these catalogs virtually guarantee substantial television, theatrical, and soundtrack album income. If a catalog does not have such guaranteed income-producing music, however, the fees charged by a local sub-publisher will usually be in the 15% to 25% range.
(3) Local Cover Recordings
If promotion of the U.S. catalog is one of the reasons for selecting a certain sub-publisher, most agreements will provide that the sub-publisher may retain a larger percentage of the income that is generated from a local recording or other use secured in the particular foreign country (a "cover record"). For example, if the fee on a mechanical income from a CD that originated in the United States , but is sold in the sub-publisher’s territory is 20%, that fee may be raised to between 30% and 40% for a single or album recorded and released by a foreign recording artist.
Some agreements provide that if a local recording is secured, the sub-publisher's percentage on all versions of the song contained on that cover record will be increased. Since this type of provision can be somewhat unfair if the original U.S. version is a major hit, this is something that one must guard against; unless, the local version becomes a major hit in a foreign territory where the U.S. version is not generating substantial income already.
B. Calculation of Mechanicals in Europe
The calculation of Mechanicals in the US is based on a Statutory Rate that is a penny rate (currently 9.1 cents) that is applied to the sale of each physical or digital copy of the composition. The Europeans have adopted a different system for calculating the amount of mechanical income to be paid to the publisher which is based on either 6.5 per cent of retail price or 8.5 per cent of the published wholesale price to dealers of the sale price of the recording. If an album or collection of songs is sold together, the total price of the sale is used to calculate the total mechanical income to be paid on to all publishers of the songs on the album.
For example, in the UK, the published price to dealer on a CD might be 8.65 pounds or $13.48 in US currency. 8.5% of that $13.48 price results in $1.14 in total mechanical income due on that CD. Depending on how many songs are on the CD will dictate the amount paid per song. For instance, if there are 12 songs on the CD, each song will receive 9.5 cents, which is quite close to the US rate of 9.1 cents. But if there are say 20 songs on the CD, the rate per song will drop to half of that, or 4.75 cents per song. As a result, there is no economic reason for the label to limit the number of songs on each CD. As a result, you often see European CD compilations which have large numbers of songs. However, if that same CD were released in the US, unless the record label obtained reduced rates from all the publishers, a 20 song CD would cost the label 20 times 9.1 cents or $1.82US per CD.
C. Mechanical Income on Exported Physical Records vs Licensed Records
Mechanical income is payable based on the country where the records were manufactured. If records are manufactured here in the United States, and shipped abroad for sale in other countries, the mechanical payments for those records are determined based on US law and must be paid by the US company who manufactured and distributed them.
On the other hand, due to shipping costs, when dealing with physical records, US based companies often license the right to manufacture those records to foreign distributors in those countries. In that instance, the manufacture and sale of the records takes place in the foreign country, and mechanicals are calculated based on the law of the country in which the manufacturing takes place. Collection of such income is the job of the sub-publisher representative for the US publisher.
D. Digital Mechanical Income Collection in the US and Europe
Despite the uniform operation of Itunes and other internet retailers around the world, there are significant differences between how mechanical income owed to the publishers of downloaded songs is collected from digital downloads are paid in the United States and Europe.
To begin with, it is important to understand that the law and procedures of the country in which the purchase is made controls the manner in which the mechanicals due on download sales will be paid.
United States:
In the United States, retailers such as Itunes remit the income from the sale of the download, after deduction of their fee, directly to the digital distributor (or major label directly) who in turn deducts their distribution fee, and remits the balance to the label. For a download of 99 cents, Itunes may deduct 20 cents, leaving 79 cents to go to the distributor/aggregator, who in turn may deduct 15% or 12 cents, leaving 67 cents that is paid to the Label.
Accordingly, it is the label’s responsibility to pay the publisher from that 67 cents for their mechanical income payment. Under the US Digital Millennium Copyright Act, the Label is required to pay the full 9.1 cents on digital sales, despite any controlled composition clause. The only remedy for the publisher who is not paid is to bring a collection action against the label. Needless to say, there are many small labels who are selling downloads from their own websites and others around the globe who are remiss in accounting to publishers and songwriters for these internets sales. Collection efforts are expensive and therefore only justifiable when significant unpaid dollars are at stake. In the US, the Harry Fox Agency represents a large percentage of the copyrighted works for mechanical and digital licensing, but, it still must rely on the Label and Record companies to account and pay for those sales.
Europe:
In Europe (and many other countries) each country (or collection of countries, if small) has its own publishing society which is similar to ASCAP, BMI, and SESAC here in the United States. The chief difference is that the European societies not only collect for the public performance of their members compositions, they also collect for the mechanical income as well. In some countries the performance rights and mechanical rights are collected by the same society, and some countries they are collected by different societies. However, the important thing to understand is that either way, you have a uniform system for collecting mechanicals directly from the retailers on the internet, which is a vast improvement over the American system.
Since the European societies receive payment directly from the retailers like Itunes for mechanical income on digital sales made by those retailers, much of the collection uncertainty of the US system is removed. The US labels share of the internet sales in Europe are reduced by the payments that are made on their behalf to the European collection societies. Initially, payments had to be made in each country in Europe where the sales were made. To simplify matters, the European Commission, agreed that publishers/rights owners could pick just one of the European societies and that society (called their Pan European Online Licensor) in turn could collect mechanical income from sales in any country in the EU, much the same way that a publisher in the United States can pick one performing rights society here such as ASCAP, BMI, or SESAC who in turn can collect for performances in all 50 states.
For major international publishers such as EMI who have subsidiaries in all the European countries, it is a simple matter for them to have their local subsidiaries designate their collection society and receive payments. For small independent labels, who none-the-less are selling downloads in Europe, they are unable to collect their withheld mechanicals until they arrange properly affiliate with one of the Pan European Online Societies. If they have a sub-publisher in Europe, that will be the job of their sub-publisher
E. Public Performance Royalties in Europe and other Countries
Public Performance Societies in Europe and other countries operate much like BMI, ASCAP and SECAC do in this country. They collect money from Broadcasters, Webcasters, Satellite, Cable, and Venues for the performance of their catalogues. American compositions which are performed abroad are entitled to share in the royalty collection in the same way that Foreign compositions are entitled to participate in the monies collected by the US Societies.
The collection of foreign performance royalties is much simpler than mechanical foreign royalties due to the existence of reciprocal agreements between the foreign societies. Under these agreements, monies earned by American publishers abroad are paid in due course to ASCAP, BMI, or SESAC depending on who controls the US performing rights, and those societies in turn pay the publisher and writer. There is no additional paperwork or registration, and the foreign royalties appear on a separate area of the US PRO statement. Due to the time required to collect and remit the foreign royalties from one society to another, and then finally to the publisher and songwriter here in the United States , foreign payments generally lag six months or more behind the original earnings period. But the lack of any additional steps to take by the publishers makes the collection process much easier.
For more detailed information on Foreign Collection Societies visit: www.bemuso.com/musicbiz/collectionsocieties.html
- Public Performance Collection in Motion Picture Theaters
“Before the 1940s, ASCAP actually collected license fees from movie theaters in the form of a “seat tax”, but according to the book “Pennies from Heaven” by Russell and David Sanjek, tried to triple the seat tax on movie theaters in the 1940s. The movie theaters, most owned by movie companies at the time, predictably fought back and argued that they shouldn’t have to pay a performance royalty to composers they had already paid to score their films. The theaters were victorious in court, and the result of ASCAP’s money grab was a financially disastrous legal loophole allowing “free music” to the movie theaters in the U.S., completely out of step with most other developed countries where movie theaters must pay performance license fees like any other broadcaster that publicly performs music.” By Mark Northam • October 19, 2009
F. “Black Box” Publishing Royalties In Europe
“Black Box” publishing royalties in Europe are unclaimed royalties who cannot be traced for some reason. When foreign societies cannot identify a composition's publisher, the money received is held for a period of time and then either used for certain society purposes or distributed to the society's publisher members. Germany, Italy and Holland hold the largest amounts of such funds. In other cases, many labels and societies in the United States and abroad hold money to be paid to publishers that cannot be accurately identified. Unlike unidentifiable royalty recipients who simply haven't kept their contact information up to date, these rights holders have not been paid because of inaccurate song titles, misspelled names, pseudonyms or incorrect publisher listings.
G. When Do you need a Foreign Sub-publisher Representative?
As we have seen above, without a local foreign representative, the small US based publisher may be collecting performance royalties in Europe and other countries, but missing out on digital sales abroad. In addition, sales of physical product abroad are also generating mechanical income which must be collected by a local publisher. Accordingly, if you as US based publisher have either significant physical or internet sales abroad, then you should consider forming a relationship with either a foreign sub-publisher or major world wide publisher.
H. World Wide Administration vs. Use of Sub-publishers
US based publishers who are small are faced with two basic choices in seeking representation abroad for their catalogue. Sub-publishers or worldwide administration with a US based publisher
Sub Publishers
There are a number of reputable sub publishers abroad who focus on certain countries or groups of countries. Their interest in working with your catalogue will be proportional to the anticipated earnings they feel are collectable in their territories. If an interested sub-publisher is found, the US publisher has to conduct “due diligence” This would involve contacting any other US based publishers who are represented by this foreign sub publisher. Some publishers are paid an advance and some are not. It depends on the popularity of the titles in the territory
Major international publishers
Major publishers are publishers with offices that are owned and operated by the publisher in various parts of the world. Sony/ATV, Warner-Chappell, Universal, and EMI are some of the better known companies. If an independent songwriter or music publisher is signed under one of these companies, they will administer the copyright world wide and there is no need for a separate relationship with sub-publisher. However, as with the sub publishers, it is difficult to attract the interest of such large companies unless your earnings abroad are analyzed by them to reach a certain threshold.
MIDEM
CLASS 12
MUSIC PUBLISHING ISSUES IN INTERNET DISTRIBUTION;
USE OF MUSIC IN ADVERTISING
Class 12
Reading:
Sobel: Chapter 11 New Media, Technology and Copyright
Wixen: Chapter 8, Sundry Uses (begins at page 91)
Foreign Issues continued perhaps and then begin Digital Media and Advertising
Music Publishing Issues and the Internet
The explosion of new music websites, software, videogame technology, and various forms of digitally transmitted media over the internet has created a host of new opportunities and challenges for music publishers. In the pre-internet world, music was either bought in a disc form or listened to over the radio or television. With the advent of internet sites that can stream music upon demand, allow customers to subscribe to music services and keep their downloaded songs as long as they remain subscribers, the line between the sale of music and the performance of music becomes more difficult to draw.
This is only one of the many issues that face the music publishing industry that did not exist until recently. Even the copyright act has been amended to provide new direction and rights for the owners of musical compositions as well as sound recordings in which they are embodied.
Because there are so many ways that music is utilized over the internet, perhaps it will help to break those uses down into categories and look at how the music publisher’s rights are implicated, administered, regulated, and compensated.
We start of course with the Copyright Act which provides to the copyright owner of musical compositions the exclusive rights to control the following activities relating to the musical composition:
1. the right to reproduce the work
2. the right to sell & distribute copies of the work to the public
3. the right to prepare derivative works based on that work
(Note, in music, this means that only the copyright owner can make changes to his work. If anyone other than the copyright owner changes the lyrics to a copyrighted song, they do not acquire any rights to the new lyrics by doing so)
4. the right to perform the work publicly
5. the right to display the work publicly (this would only apply to sheet music)
All uses of music over the internet, recorded or otherwise, will by necessity require the consent of the music publisher to engage in one or more of these rights. (The only exception would be where the copyright period has expired by law. These songs are in the ‘public domain’ and permission is not required)
Note this excerpt from “Navigating the Tangled Web of Webcasting Royalties” by Cydney A. Tune and Christopher R. Lockard published in Entertainment and Sports Lawyer, Volume 27, Number 3, Fall 2009 © American Bar Association
“There are myriad ways that music is used and distributed on the Internet.
Services such as iTunes sell permanent downloads and ringtones that consumers
download to their computers and cell phones. Other companies, such as
Amazon.com, sell physical phonorecords (like records and CDs). Music is also
contained in other online content, such as podcasts, commercials, and videos carried
on Web sites like YouTube. Finally, thousands of Web sites, known as webcasters,
stream music over the Internet to listeners. Each of these uses implicates
different licensing and royalty schemes.
The term “webcasting” generally refers to the distribution of an audio or video over the Internet using streaming media technology. Some webcasters are companies that operate Federal Communications Commission (“FCC”)-licensed radio stations that stream their over-the air programming simultaneously on the Internet. Other companies deliver their programming solely over the Internet. Even in this latter category, there is a wide range of businesses. Some webcasters offer a format similar to traditional radio, where all listeners hear the same preprogrammed set of songs at the same time. Other
webcasters have developed technology that allows users to create their own channels
by rating songs, artists, or genres that they do or do not like. Still other webcasters
offer subscription services that allow users to select music on demand. Some
webcasters are even expanding into new forms of delivery—for instance, Pandora
music streams now can be listened to via iPhones and some Blu-ray players.
Under U.S. copyright law, the owner of a copyrighted work, such as a song, has
the exclusive right to make copies of the work, prepare derivative works based on
the copyrighted work, distribute copies of the work, and display or perform the work
publicly, including, in the case of a sound recording, by means of a digital audio
transmission. Webcasters’ use of music may implicate three of these rights—the
right to reproduce the work, the right to distribute the work, and the right to
perform the work publicly.
To make matters more complicated, most recorded songs also have multiple copyright owners. Songwriters, composers, and publishers of a musical composition (a “song”) have rights in the song. For example, these owners have the right
to receive royalties every time a copy of the song is sold in sheet music form or
as part of an album, as well as when the song is broadcast over the radio, the Internet,
speakers in a restaurant, or when it is performed in a concert. Additionally,
artists who perform on a recorded version of a song (a “sound recording”),
and the owner of the copyrights in that sound recording (generally the record
label), also have the right to receive royalties for sales of that sound recording
and for the digital transmissions of that sound recording.”
The following is a brief description of the way permission may be given for various uses of music over the internet:
1. Statutory Compulsory Licenses for Non-Interactive Performances , Downloads and Ringtones :
The Copyright Act has been amended so as to establish rates for the compensation of music publishers upon the sale (on recordings) and performance of compositions over the internet. For the sale or ‘download’ of recorded music in digital form, currently the statute requires the payment of 9.1 cents per unit to music publishers. For the performance of musical compositions over the internet, a compulsory license is available as long as the use is “non-interactive”. The definition of “non interactive” contains provisions which make compulsory licensing unavailable where the customer can control when the composition is going to be played. Rates were set by the Copyright Royalty Board which were deemed unacceptably high by the major webcasters, which led to a negotiated rate settlement that has since been implemented between publishers and webcasters which is more affordable. Ringtones are also subject to a compulsory license, and the fee is 24 cents per download.
2. Voluntary Licenses:
Music Publishers and internet companies can usually agree to whatever terms they can agree to between them for uses of their music. There are statutory limitations imposed upon record companies that require them to pay no less than the full mechanical rate for digital sales over the internet. And if a music publishing company is represented by a performing rights organization, they will act as the licensing agency for performances over the internet. Synchronization licenses are voluntary licenses obtained directly from the music publisher.
3. Licensed by a performing rights society:
ASCAP, BMI, and SESAC have reached agreements for the performances of their member’s catalogues over the internet for non-interactive use, and interactive use.
(The legal history of this area is quite complex and there are several good articles available for students who wish to go into more detail which are listed here:
“Navigating the Tangled Web of Webcasting Royalties” by Cydney A. Tune and Christopher R. Lockard published in Entertainment and Sports Lawyer, Volume 27, Number 3, Fall 2009 © American Bar Association
“Digital Downloads and Streaming: Copyright and Distribution Issues”
By Edward (Ned) R. Hearn © July 2009
“Music Licensing in the 21st Century” by Todd and Jeff Braebec © 2006
While the legal and rate setting history of music licensing for internet uses is complicated, we can simplify the issues somewhat by viewing them from the perspective of the music publisher. To do this, lets look at some examples to illustrate how digital music licenses are issued and obtained in a variety of circumstances:
1. Music is streamed (played) by a webcaster in an unpredictable pattern controlled by the station;
Type of Rights required from Publisher:
Non-interactive Public Performance License
License to Make Ephemeral Copy to be used for transmission
Publisher’s License Provided by:
Performing Rights Organizations: ASCAP, BMI, and SESAC; Rates set vary based on various factors
Payments: Made equally to Publisher and Songwriter by PRO
2. Music is streamed (played) by a webcaster in manner which does not qualify for non-interactive compulsory license
Type of Rights required from Publisher:
Interactive Public Performance License
License to Make Ephemeral Copy to be used for transmission
Publisher’s License Provided by:
PRO’s ASCAP,BMI, and SESAC; Rates set vary based on various factors and are higher for this use than non-ineractive
Payments: Made equally to Publisher and Songwriter by PRO
3. Music is played over a website in a video, movie, advertisement, videogame television show or otherwise in timed relation to a visual image.
Type of Rights required from Publisher:
Synchronization License that permits internet usage
Publisher’s License Provided by:
Direct negotiation with Publisher and payment to Publisher
Payments; Directly made to Publisher who shares with songwriter
4. Songs are Downloaded and Sold over the Internet
Type of Rights required from Publisher
Mechanical License
Performance License (either Interactive or Non-Interactive) if music is also streamed at the site
Mechanical Publisher’s License Provided by:
Either Direct from Publisher or Harry Fox Association (if publisher is represented by Harry Fox)
Payments: Made directly to either Publisher or Harry Fox
Public Performance License Provided by:
PRO’s
5. Calculation Methods Used by Performance Rights Organizations for Various Types of Musical Performances over the Internet
Performance Rights Organizations have struggled to come up with a system of rates for the Interactive and Non-Interactive streaming of their catalogues over the internet that are agreeable to Webcasters. Currently, rates charged by PRO’s are based on the following factors as shown in the following information taken from ASCAP’s website:
1. Is the service Interactive or Non-interactive?
2. Total revenue of the webcasting service?
3. Minimum charges for small webcasters
4. How much of the webcaster’s activity is music related?
5. How many visitors or users are on the webcaster’s site?
ASCAP Internet Licensees
License Fee Calculations
Both the Non-Interactive 5.1 and Interactive 2.1 offer licensees a choice of three License Fee Report Forms, also known as "Rate Schedules." The minimum annual license fees under the 5.1 and 2.1 are $288.00 and $340.00, respectively. Minimum Annual License Fees are not prorated to reflect portions of a calendar year. All Rate Schedules utilize two basic metrics: 1) Service Revenue; and 2) Service Sessions (unique visits).
Rate Schedule "A" contains the broadest of the three types of fee calculations and is generally well suited for music-intensive services. The rates under Rate Schedule "A" are applied to total (qualifying) Service Revenue and total Service Sessions, and are the lowest amongst the three Rate Schedules.
Rate Schedule "B" may achieve a lower license fee for services that provides a diversity of programming and content to their users. It calculates a license fee based on total revenue and usage adjusted to reflect relative music use, and contains rates slightly higher than those in Rate Schedule "A." It is, therefore, generally well suited for services that offer a diversity of programming beyond music. Services that wish to use Rate Schedule "B" must be capable of accurately tracking and reporting the metrics required by the Rate Schedule "B" calculation.
Rate Schedule "C" goes a step further than Rate Schedule "B" and calculates a license fee based on total revenue and usage adjusted to reflect both relative music use and, specifically, ASCAP music use. It, therefore, contains our highest rates. It is generally well suited for services with modest overall music use. Services that wish to use Rate Schedule "C" must be capable of accurately tracking and reporting the metrics required by the Rate Schedule "C" calculation.
Upon entering into an ASCAP New Media license, you will submit Initial License Fee Report (the rate schedule of your choice) containing good faith estimates of Service Revenue and Sessions for the period starting with the effective date of your license and ending on December 31 of the same calendar year. At the onset of the next calendar year, you will submit an Annual License Fee Report containing actual data from the prior calendar year. If your Annual License Fee Report indicates a license fee different from your Initial License Fee Report, an appropriate adjustment will be made to your account. Your Annual License Fee Report will then serve to estimate your license fee for the current calendar year.
To assist you in calculating your ASCAP New Media license fee, please use:
ASCAP RateCalc®
The ASCAP RateCalc® should be used only as a reference and should not be submitted with your license agreement.
II. Music Publishing Issues and Advertising
For the most part, advertising agencies with responsibility for producing the television or radio ad determine, in concert with the client, what music is the best fit for their advertising campaign. There are several means of securing the music:
1. License an existing master recording and composition
2. License a composition and re-record the composition in a manner that suits the ad
3. Hire a jingle writer to compose and record an original song just for the advertisement
Lets look at them separately.
Licensing an Existing Master and Composition:
As we know, the Master and Composition are often controlled by separate entities, which require the consent of both if the deal is to go through. While, advertising fees for Masters and Compositions for top selling brands can fetch hundreds of thousands of dollars for a one-year national campaigns, Artists and Songwriters often have strong feelings about how their music is used in such circumstances.
How much control the songwriter has over the requested use will often turn on the contract between the songwriter and the publisher. Obviously, if they are one in the same, then the songwriter has the ultimate power to accept or decline. However, if the songwriter has signed a contract with a publisher which does not give the songwriter any control over how the song is licensed, it will be the publisher’s decision. The more prominent the songwriter, the more control they will be able to negotiate over the types of licensing activity for their compositions. At the most basic level, songwriter agreements may provide that the publisher will require songwriter consent for sample licenses, political advertisements, explicit sexual films, and feminine hygiene products.
License a composition and re-record the composition
This may be done for a variety of reasons. The advertiser may not need the original recording and therefore does not wish to pay the fees they would charge to license it. They may want to record a version of the composition with new lyrics that relate to the advertisement. In one famous case, Ford Motor Company wanted to license the Bette Midler recording of “Do You Want to Dance”. She said no, but Ford licensed the composition anyway from the publisher, and re-recorded it using a singer who could sound just like Bette Middler. Bette Middler sued under a breach of her “right to publicity” because the public thought it was her and yet she had not given her consent. Absent attempting to fool the public into thinking the vocalist is a famous artist, there is no limit on how close the recording can sound to the original.
Hire a Jingle Writer to Compose and Record an Original Composition
Jingles are usually songs that use lyrics and melody to create or reinforce a brand. Companies who produce television or radio commercials often use jingles to make their sales message memorable to people. An advertising message that is set to music is potentially more easily remembered than straightforward advertising copy. If a consumer remembers the jingle, he or she will probably be familiar with the company and the product. These songs are typically brief, and a jingle writer must cater to client demands and industry standards. Jingles written for television usually have time limits of 10, 15, or 30 seconds. For radio, jingle writers are generally allowed more time — between 30 and 60 seconds.
A jingle writer usually tries to compose music that reflects the company, the product, or the potential market the company is trying to reach with its message. This often means that the musician must write the jingle in a style that serves the client, and not his or her personal creative sensibilities. For example, a store that sells Western wear will usually want to have a country western or bluegrass melody in its jingle, even if the musician prefers another style of music.
The client often has specific words or phrases that the jingle writer must include in any included lyrics. This predetermined content may include the company or product name, a special feature of the advertised product, or any key words, phrases, or slogans that create an emotional atmosphere around the product. For example, a jingle for a jewelry company may include a company slogan that elicits thoughts of love or beauty in a customer’s mind.
Those jingle writers who are just starting their careers typically work as freelancers, or on spec. This type of freelance writing generally means that the music writers bid on a project that a company has posted or requested in some way. Writing on spec usually means that musicians compose jingles and pitch these compositions without being asked by an advertiser.
An independent jingle writer typically owns his or her own jingle writing business. These composers may work as freelancers or with a roster of steady clients. They usually hire musicians to play various instruments and may also have their own recording studios
This can be a lucrative market for well connected songwriter/producers. Most jingle companies will base your costs on where you plan to air your ads. The typical price range for original material is as follows: locally - $1,500 to $3,000, statewide - $2,500 to $4,500, regionally - $3,500 to $10,000, nationally - $6,500 to $20,000+, globally $30,000+.
Because the advertisers are looking for a jingle that is created specifically for them, music publishers rarely get involved. If the company likes the jingle, the fee that is paid includes the assignment of the copyright.
