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Composers: Know Your "Rights"
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:
First Performance Rights and Exclusive Performance Rights
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.