Songwriting Tips, News & More

Songwriting Tip: You Signed a Deal You Shouldn’t Have. Now What?

Posted by Jessica Brandon on Tue, Jun 07, 2016 @07:00 AM

Songwriting Tip: You Signed a Deal You Shouldn’t Have. Now What?

by Erin M. Jacobson

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You signed a deal without having a lawyer review it or you didn’t listen to your lawyer’s music industry advice when (s)he told you not to sign. Several months later, you realize that you probably shouldn’t have signed that deal. Maybe you find that your vision isn’t quite in sync with the other party, maybe they haven’t followed through on the promises they made you or maybe they just turned out to be bad people. Now that you have already committed yourself to this agreement, what are your options?

Here’s some music industry advice: your first step is to contact an attorney. If you did not previously have an attorney review the deal, you need to have an experienced music attorney review it to assess the obligations of each party and whether there are any provisions that would allow you to get out of the contract. If you previously had an attorney review the deal, have that person review it again for the same reasons. It is possible the situation may be remedied by one of the following options:

  1. Contract Termination
    Sometimes contracts have clauses in them that allow for the parties to terminate the contract. These provisions are often tied to certain circumstances, which may be beneficial to you or may complicate matters depending on whether those circumstances have been met.

Another option is having a conversation with the other party where hopefully both of you can come to a mutual agreement to go separate ways. In the alternative, the parties may agree to terminate the contract albeit on not so amicable terms. In this case there will probably be some sort of termination and settlement agreement, where the terminating party might be subject to a penalty or payment to get out of the deal.

  1. Renegotiation
    If you still want to work with the other party but under changed circumstances, another option is seeing if the other party is open to renegotiating some terms of the contract. In reality, a renegotiation in this situation should only be to correct or improve the current problems, not to try to get better terms just because you want more than to what you previously agreed.

Your relationship with the other party and status in the industry both greatly affect a potential renegotiation. If you are a new artist without a proven track record or previously established track record, you are really at the mercy of the company as to whether they will agree to a renegotiation.

Having greater leverage and/or a good relationship with the company will greatly help you here.

  1. Litigation
    If you’ve tried both of the above options and neither have worked, you may want to consider litigation––i.e. suing the other party to get out of the contract. Although you may be prepared to or actually file a lawsuit, many of these matters do settle out of court, usually saving you a lot of time and expense. Once again, this scenario will probably be subject to a termination and settlement agreement and may come with penalties. However, this is sometimes much easier and faster than litigation, which can be lengthy and very expensive.

 

If you decide to pursue the litigation route, you should make an informed decision based on the time and expense involved.

Further, while some attorneys will take a case on contingency (meaning that they only get paid if they win your case) and get a percentage of your recovery from the case, most attorneys do not and will require an hourly rate and an upfront retainer.

Be respectful of the attorney’s policies and don’t try to persuade him or her to take the case.

The moral of the story is to always have an attorney review a contract before you sign it and carefully consider your attorney’s music industry advice.

The ultimate decision whether to sign is yours, but it is much more difficult to change or terminate a contract after signature than negotiate or walk away from a deal before it is signed.

Don’t sign any deal just because you are excited to have been offered one. Careful consideration of whether this is the right deal for you may save you a lot of future grief.

 

Disclaimer: The content contained in this article is not legal music industry advice and does not constitute or create an attorney-client relationship between Erin M. Jacobson, Esq. and you. You should not rely on, act, or fail to act, upon this information without seeking the professional counsel of an attorney licensed in your state. If this article is considered an advertisement, it is general in nature and not directed towards any particular person or entity.

 

[Reprint Permission granted by Music Connection magazine]

 

ABOUT THE AUTHOR
ERIN M. JACOBSON
 (themusicindustrylawyer.com) is a practicing music attorney, experienced deal negotiator and seasoned advisor of intellectual property rights who protects Grammy and Emmy Award winners to independent artists and music companies. Jacobson also owns Indie Artist Resource (indieartistresource.com), the independent musician’s resource for legal and business protection offering template contracts and other services meeting the unique needs of independent musicians.

  

To enter the 21st Annual USA Songwriting Competition, go to: http://www.songwriting.net


 
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Tags: songwriter, song writer, song write, Song writing, Songwriting, songwrite, song demo, collaborations, Contract Termination, Music Publishing Deal, Renegotiation, Music Publishing Contract, Record Contract, Litigation

5 Simple Truths I Learned About Songwriting

Posted by Jessica Brandon on Tue, May 10, 2016 @07:00 AM

5 Simple Truths I Learned About Songwriting

by Jessica Brandon & Ron Van Dyke

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I thought I knew a lot about songwriting when I first got involved with co-writing and writing with other songwriters and producers.

I was dead wrong.

I had a transformation of sorts. While helping to write this article together, I discovered the real truth about songwriting. I found out how to write a song without having to feel uncomfortable and feel like I was forcing the issue, plus a heck of a lot more.

Here are five simple truths I learned about songwriting, and myself, after being involved with writing songs with other co-writers.

 

  1. Nobody is a natural songwriter

When I started in songwriting I got three words of advice from my band member “Go get ‘em.” Most musicians and songwriters seem to think that you can go out there and just write. When that doesn’t work, and you come up short too many times, you start thinking you are no good at songwriting.

The simple truth is no one is a natural born songwriter. And songwriting is a learnable skill anyone can master given the right tools, strategies and learning. There are hit songwriters such as Harriet Schrock, Jason Blume, Ralph Murphy who are songwriting teachers that are helping budding songwriters.

 

  1. Rewriting Your Songs

The first draft of your song may not always be the best. Sure, you have heard hit songs written in just 5 minutes. However, rewriting lyrics and music can be a rewarding experience. Especially if you are not satisfied with your first draft, writing songs is like sculpting a sculpture, a piece of art.

Also, when you return to your song an hour or a week later, you’ll have partially forgotten its details—and assuming you documented the draft carefully, that’s a good thing!

 

  1. Don’t wing it, learn song structures

When I first started songwriting many years ago I had no form. I didn’t know what AABA form or verse, chorus, bridge was. I had no idea what a verse refrain structure was. There was no preparing in advance and no real order to what I would say or how the melody or chords would be. I knew what I wanted to say in the song well enough and could wing it. But since I didn’t have a set way to write, it was hard to learn the various structures for writing a song. I was leaving my songs to chance and letting the many songs go incomplete. Learning structures of various songs is important – it lets you control the songwriting process so you can steer your lyrics, melody, chord progression, and have a better chance of completing the song.

 

  1. Songwriting should come naturally

If you learn structures of songwriting, the momentum you build and the objections you eliminate will make your audience eager to hear your song, which makes the songwriting a pleasant and rewarding experience.

Also, listening to new songs on the radio can provide sources of inspiration. There were times where I had the dreaded “Songwriters Block” where no music or lyrics were coming from my head. I took a 15 minute break by turning on the radio and Voilà – I had a hook for the chorus! My ideas for the verse, pre-chorus and bridge came quickly and my song was completed within an hour.  

 

  1. Co-writing credits can sometimes be misinterpreted

If you look at the Billboard charts you’ll notice that many of the songs have more than one writer credited. This may not always be as it 1st seems as some of the co-writer’s listed may not have written a single word or a note. In these cases it could be a producer, an A & R manager or an artist who worked a writing credit into the deal with the songwriter. The more famous or well known an artist or producer is, the greater the chance of having a hit song and, therefore, the more leverage they have in getting these kinds of "co-write" deals especially with hungry songwriters. A famous example of this was Elvis Presley who indicated that he wanted to cover Dolly Parton’s song “I Will Always Love You”. Parton was interested until she realized that Presley’s manager expected her to sign over half of the publishing rights. She declined and the rest is history.  The song went on to be one of the best selling hits of all time when it was covered by Whitney Houston with Parton keeping all of her royalties.

Many of the great songs out there have been written by more than one writer, which goes to show that co-writing can be a fruitful and wonderful thing. If you are looking for co-writing opportunities it’s important to know your strengths. Are you better at the music side of things or are you stronger with the lyrics? Knowing this can help you identify co-writers who have strengths that you may not have, therefore, making it a potentially better match and hopefully avoiding disappointments. If you are able to hook up with writers who are better and more experienced than you, even better. Collaborating with other songwriter’s is a cool thing and definitely worth trying. This is just one of the many fascinating topics that are covered in our past blogs posts.

 

Enter your songs in the 21st Annual USA Songwriting Competition, enter online or by mail. Enter now... But you must enter by midnight, May 27, 2016. Go to: http://www.songwriting.net/enter


 
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Tags: songwriter, song writer, song write, Song writing, Songwriting, songwrite, song demo, song structures, collaborations, Co-Writing Songs, Music Publishing Deal, Music Publishing Contract, Record Contract, Rewriting

What Is A Music Publishing Deal?

Posted by Jessica Brandon on Tue, Apr 26, 2016 @07:00 AM

Songwriting Tip: What Is A Music Publishing Deal?
by Wallace Collins, Esq

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What Is A Music Publishing Deal? - and Do I Really Need One?
    The term "publishing", most simply, means the business of song copyrights.  A songwriter owns 100% of his song copyright and all the related publishing rights until the writer signs those rights away. Under the law, copyright (literally, the right to make and sell copies) automatically vests in the author or creator the moment the expression of an idea is "fixed in a tangible medium." (i.e., the moment it is written down or recorded on tape.)  With respect to recorded music, there are really two copyrights: a copyright in the musical composition owned by the songwriter and a copyright in the sound of the recording owned by the recording artist (but usually transferred to the record company when a record deal is signed).

     A writer owns the copyright in his work the moment he writes it down or records it, and by law can only transfer those rights by signing a written agreement to transfer them. Therefore, a songwriter must be wary of any agreement he or she is asked to sign. Although it is not necessary, it is advisable to place a notice of copyright on all copies of the work. This consists of the symbol "c" or the word "copyright", the author's name, and the year in which the work was created, for example: " (c) John Doe 2014."

     The filing of a copyright registration form in Washington D.C. gives additional protection in so far as it establishes a record of the existence of such copyright and gives the creator the presumption of validity in the event of a lawsuit. Registration also allows for lawsuits to be commenced in Federal court and, under Federal law, allows an award of attorneys fees to the prevailing party.  To order forms and for additional information on copyright registration call (202) 707-9100 or go to www.loc.gov\copyrights. These days a songwriter can even register on line.

     As defined by the copyright law, the word "publish" most simply means "distribution of copies of a work to the public by sale or other transfer of ownership, or by rental lease, or lending". As a practical matter, music publishing consists primarily of all administrative duties, exploitation of copyrights, and collection of monies generated from the exploitation of those copyrights. If a writer makes a publishing deal and a publisher takes on these responsibilities then it "administers" the compositions. Administrative duties range from filing all the necessary registrations (i.e., copyright forms) to answering inquiries regarding the musical compositions.

     One important function of a music publisher is exploitation of a composition or "plugging" a song. Exploitation simply means seeking out different uses for musical compositions. Sometimes a music publisher will have professional quality demos prepared and send them to artists and producers to try to secure recordings. They also use these tapes to secure usage in the television, film and advertising industries.

     Equally important as exploitation is the collection of monies earned by these musical usages. Particularly in in the digital age, when transactions amount to billions and payments to fractions of pennies, the administration of song copyrights and the collection of revenues can be a complicated and massive undertaking. There are two primary sources of income for a music publisher: earnings that come from record sales (i.e., mechanical royalties from both physical and digital copies) and revenues that come from broadcast performances (i.e., performance royalties).  Mechanical royalties are collected directly from the record companies and paid to the publisher. Performance royalties are collected by performing rights organizations (e.g., ASCAP, BMI, and SESAC in the United States and different entities in each other country) and then distributed proportionably to the publisher and to the songwriter. In addition to plugging and administrative functions, it is also important to know that there is a creative side to music publishing. Since producing hit songs is in the best interest of both the writer and the publisher, good music publishers have whole departments devoted to helping writers grow and develop. The creative staff finds and signs new writers, works with them to improve their songs, pairs them up creatively with co-writers and hopes the outcome will be hit records.

     A publishing deal concerns rights and revenues. If a writer decides to do a publishing deal then the main issue for negotiation is going to be the language pertaining to the calculation and division of the rights in the copyright and division of the monies earned. In the old days, most deals were 100% copyright to the publisher and 50/50 share of the revenues because there was a concept that the "writer's share" was 50% and the "publisher's share" was 50%. This, of course, was an invention of the publishers. Legally, these terms have no such inherent meaning but their calculation is defined in each individual agreement. Most modern publishing deals, however, are referred to as "co-publishing" deals where the copyrights are co-owned 50/50 and the monies are usually calculated at around 75/25 meaning the writer gets 100% of the 50% writer's share and 50% of the publisher's 50% share for a total of 75%. It is best for the writer to insist that all calculations be made "at source" so that there are not too many charges and fees deducted off-the-top before the 75% calculation is made. Keep in mind, however, that the advance paid to the writer by the publisher is later recouped by the publisher out of the writer's share of income from the song. So, the net business effect is that the publisher pays the writer with the writer's own money to buy a share of the copyright (and the right to future income) from the writer.

     Although a writer can be his own publisher and retain 100% of the money, the larger publishers in the music business usually pay substantial advance payments to writers in order to induce them to sign a portion of their publishing rights to the publisher - and this can be a good thing for the writer. Although a deal for a single song may be done with little or no advance payment (provided there is a reversion of the song to the writer if no recording is released within a year or two), there should be a substantial advance paid ($5,000-$100,000+) to a writer for any publishing deal with a longer term (e.g., 3-5 years or more). Moreover, sometimes the length of an agreement is more than just a function of time, it might also be determined based on the number of songs delivered by the writer or, even more difficult to calculate, based on the number of songs that get recorded and released on a major label (something neither the writer nor the publisher may have any control over).

     Publishing deals have to do with more than just the money though. Since every music publisher is different, it is important for the songwriter to assess both the business and the creative sides of a music publisher before signing any deal. Ultimately, the songwriter is trading a share of something the writer already owns 100% of (the copyright) so it is important to be mindful of what it is exchanged for by way of services and money.


Wallace Collins is an entertainment lawyer and intellectual property attorney with more     than 30 years of experience. He was a songwriter and recording artist for Epic Records before receiving his law degree from Fordham Law School. T: (212) 661-3656; www.wallacecollins.com


  
To enter the 21st Annual USA Songwriting Competition, go to: http://www.songwriting.net

 
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Tags: songwriter, song writer, song write, Song writing, Songwriting, songwrite, song demo, collaborations, Music Publishing Deal