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Composers: Know Your "Rights"

by Gerald Warfield

In a climate where the expected financial return from concert music is low, maintaining legal control of a piece is usually secondary to getting performances. Nevertheless, the potential of any piece of music, much less the potential of a composer's career, is partly dependent on decisions made by that composer-consciously or unconsciously-concerning the rights to his or her music. Most composers have little or no training in rights and learn about them on an "as-needed" basis as they try to publish, record, or obtain performances. The following is an attempt to present, at least in outline, the major rights areas as they apply to pieces of concert music.

All composers initially own the rights to their own compositions by virtue of US copyright law. Traditionally, these rights are assigned by the composer to a publisher as a condition of publication and in return for certain financial considerations. Some payments for rights are set by industry standards, some are statutory, and some are negotiated. In the case of commercially viable music, rights are sometimes divided and assigned to many different parties. Currently, the rights to a piece of music are constituted as follows:

Distribution Rights
This is the right to distribute published (printed) copies of a piece of music. This right is exercised by the publisher, and the publisher pays the composer a royalty for same. Typical royalty based on this right is 10% of the retail price for purchases and 50% for rental of score and parts. Even though publishers only need one of those rights (distribution rights) to publish and sell printed copies of a piece, publishers are traditionally assigned most rights. They then, on their behalf and the behalf of the composer, negotiate the other rights with third parties as needed. Publishers maintain that they need a share of the money from these other rights to cover the costs of publication and distribution.

Performance Rights
This is the right to perform a work at public concerts. Collection of fees for performance rights is by ASCAP, BMI, and SEESAC (in the US) and is accomplished by annual blanket licenses or one-time special licenses for all concert uses of any music represented by the licensing agency. After costs, revenues are distributed through the collecting agency 50% to the publisher and 50% to the composer. Fees for performances in foreign countries are collected by foreign collection agencies and passed on to one of the US collection agencies. Unfortunately, foreign collection is very slow and it can be years before you receive fees for foreign performances.

Mechanical Rights
This is the right to reproduce and distribute a performance of a composition on CD, record, or tape. The first time a piece is recorded the recording company must have permission from the mechanical rights holder (usually the publisher) but all subsequent recordings can be without permission so long as the standard fee is paid to the mechanical rights holder. The publisher may negotiate a first-time fee for the granting of this right (if the piece is published) but usually the publisher is satisfied with only the statutory per-record royalty rate. All income (first-time fee and subsequent royalties) is distributed usually 50% publisher, 50% composer. The per-record fee paid to the publisher by the recording company was set by the Copyright Tribunal established when the new copyright law went into effect, Jan. 1, 1998. The rate is 7.1 cents or 1.35 cents per minute, whichever is larger, for each record manufactured and distributed. Most publishers use the Harry Fox Agency to license and collect mechanical royalties.

Grand Rights
This is the right to present a theatrical or dance work. This right is negotiated by the publisher (if the publisher is the copyright holder), and the revenues received by the publisher are distributed according to agreement between the publisher and the composer. Most publishers use the Harry Fox Agency to license and collect grant rights.

Synchronization Rights
This is the right to use a composition in film, TV, or video. It is negotiated by the publisher (if the publisher is the copyright holder), and the revenues received by the publisher are distributed according to agreement between the publisher and the composer.

First Performance Rights and Exclusive Performance Rights
These are rights often assigned as a condition of a commission. While they may be desirable to the commissioning party they are sometimes limiting to the composer who might prefer more universal performances opportunities for his/her work.

A word about commissions: The only rights usually assigned as a condition of a commission are first performance rights (for a stated period of time), exclusive performance rights, and the initial mechanical performance rights. In other words, income-producing rights are almost never transferred. Thus a composer may hope to get paid to write a piece and then to receive future payments for the performance/recording or other uses of the piece all because specific rights to the composition (distribution, performance, mechanical, grand and synchronization) were retained by the composer and not transferred as part of the commission. This situation is in contrast to the other arts where, for instance, a person commissioning a portrait gets a painting which they own and which their heirs may sell at a later date. (In other words, the painter has no further claim to the portrait other than authorship.) In legal terms, there is little or no exchange of goods or services in a typical music commission.

Historically, rights evolved so that composers could benefit from the fruits of their labor and likewise so that publishers could benefit from undertaking to print and distribute the printed music. Thus "publication" was central to all other activities involving the presentation of music. Today, however, publishers derive very little income from distribution. Most money lies in performance rights and the other rights that the publisher negotiates. For this reason composers have increasingly taken on the responsibility of printing and distributing their music themselves in order to control the other rights to their pieces and to retain the publishers share of the collected performance royalties.

Rights have always been defined to accommodate the various media in which music may be presented, and they are relevant to the income your compositions may generate and to the conditions under which your compositions may be performed. With the appearance of the Internet and the vital participation of music in that medium it is now unclear whether these "traditional" rights are sufficient to protect composers' interests.

Note: This article represents the personal view of the author and does not constitute legal advice nor does it represent the official view of SCI. Thanks to Richard Brooks for reviewing and amplifying the section on mechanical and grand rights. Other points of view, corrections or observations are welcome and will be printed in future volumes of the Newsletter.