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Songwriter1

See Jane. 

See Jane write lyrics. 

See Dick. 

See Dick write melodies.  

See Dick meet Jane.

See Dick and Jane combine their efforts and collaborate together to write a song. 

This is one frequent story among Nashville’s songwriting community.  On any given afternoon in Nashville, there will be innumerable co-writing sessions occurring at any given moment.  Those collaborative efforts certainly produce most of the top hits on the country charts.  The odds are, however, that at least 9 out of 10 of those songwriters will not know the implications of collaborating with another songwriter on the creation of a copyright. 

Rarely do songwriters consult an attorney or enter into any form of collaboration agreement prior to co-writing.  Rarer still is the songwriter that fully understands the important consequences that flow from co-writing with another songwriter. 

If a songwriter does happen to consult about this issue, the first thing I tell them is that it is very much like entering into a marriage relationship.  When two songwriters get together and collaborate on the creation of musical composition, each songwriter is a co-owner of and equal and undivided interest in the whole copyright, i.e. each songwriter co-owns 100% of the copyright – regardless of the relative extent of their respective contributions.   Ownership is not equally divided, as is commonly thought — i.e. split 50/50 (that confusion comes from the fact that the royalties derived from the copyright are usually divided equally). 

In the Dick and Jane analogy above, for example, Jane does not separately own the lyrics and Dick separately own the melodies.  Dick effectively owns 100% of the song, including both the lyrics and music and Jane effectively owns 100% of the song, including both the lyrics and the music.  The concept is very similar to the legal principle of tenancy in common.  Unless they agree to the contrary in writing, each songwriter has the right to administer the entire copyright without consulting with the other songwriter, i.e., each songwriter may issue nonexclusive licenses to the entire copyright or issue first use licenses.  The only obligation each co-owner has to the other is to account for any profits earned by the exploitation.  A co-owner may not, however, without the permission of the other co-owner, transfer exclusive rights to use the work or transfer the entire copyright to a third party.  

To be absolutely clear, the Copyright Act does not really define “joint authors,” but rather defines a “joint work” as a “work prepared by tow or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”  17 U.S.C. 101.   The key here is intention — i.e., the parties must intend that their work be integrated or merged to form a united whole at the time the work is created.  The legislative history that accompanied the act specifically states that a work is “joint” if the authors collaborated on its creation.  See H.R. Rep. No. 1476, 94th Cong., 2d Sess. 120 (1976); S. Rep. No. 473, 94th Cong., 1st Sess. 103-104 (1975).

Take for example the circumstance that arises when a person creates a poem, which is registered as a copyright.  Then, later on, a second person takes the poem and modifies the words, adding music to create a song.  The situation described is different from the collaborative effort in that there was no intent, at the time the poem was created, to merge it with the second creative effort.  The second work, the song, is a derivative work, and its writer needs permission from the creator of the poem to create the derivative work.

While we’re on the subject of derivative works, each co-owner of a joint work may create derivative works independently of each other and without the permission of the other, and, without any obligation to share the royalties derived from the exploitation of the derivative work.

Songwriters3 Now, not to further confuse the issue but, in the eyes of the law, there is a difference between co-ownership in the copyright and split of the royalties.  To get back to the Dick and Jane analysis, the typical understanding is that Dick and Jane would split any royalties received from the exploitation of the copyright on a 50/50 basis.  It is important to understand once again, however, that this understanding can be modified with a written agreement between the co-writers.  A songwriter whose reputation is strong enough can certainly request that he or she receive a greater percentage from the royalties, and even ask for a greater percentage ownership interest in the copyright.  These types of exceptions, however, must be expressed in writing between the parties in order to be enforceable. 

Another complication arises in circumstances where a party merely contributes an “idea” to the collaborative effort.  Is that person entitled to be a co-owner?   I’ve had this issue arise in litigation.  Two parties are collaborating on a song and have most of the song written.  In walks a friend who is also a songwriter.  He listens to the song and contributes an idea that is incorporated into one line of the song.  He leaves, the song is finished, and becomes a hit.  Does the third songwriter have an interest in the song?  The answer to the question is inevitably determined by the particular facts and hinges on whether the third party merely contributed an idea, or actually contributed the expression of an idea. 

As a final observation, let’s overlay the life of the copyright over the co-ownership of a collaborative work to give our brains a final flash fry if you will.  Assuming the work to have been created after January 1, 1976, the life of the copyright is life of the author plus 70 years.  In the event of a joint work, however, it is the life of the surviving author plus 70 years.    What this means in realty is that one of the co-writers in a successful hit song, i.e., the last man standing, will eventually become co-owners with the heirs of the deceased songwriter, either in the form of a wife or a child. 

Most songwriters, of course, are not thinking this far down the road when they make their daily co-writing appointments.  But that’s the real thrust of this article.  If you’re a songwriter, you should consider the possibility of a collaboration agreement.  Most songwriters, I admit, do not think about this sort of thing because it cramps the creative vibe that needs to be created in a collaborative effort.  This, in my opinion, is not a wise idea.  At the very least — and this is not my recommendation — the writers should have some conversation about the consequences of their efforts.  Considering the consequences, the best course of action would be to consult with qualified legal counsel and get a collaborative agreement drawn up and signed — or at least have a written statement of intent signed by both writers  — at some agreeable point before the co-writing session begins, so as not to interfere with the creative efforts. 

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Clay Walker’s “Fall” Video

Together with Clay Mills and Shane Minor, my new client Sonny Lemaire is one of three songwriters on Clay Walker’s new single, Fall, featured in the video link above.  The song is currently climbing Billboard’s Hot Country Songs chart and, after a 31-week run so far, is breaking well into the top ten!  Expect it to hit the top five very soon!

If you’re as old as I, you may remember Sonny’s old band from the Seventies, Exile, particularly their 1978 blockbuster hit Kiss You All Over, which was number one on the pop charts for over a month and had a chart life of 23 weeks.  The Exiles toured with many of the other greats of that glittery era, Boston, Heart, Aerosmith and Seals & Croft.  Sonny either wrote or co-wrote many of the band’s greatest hits.

Since that time Sonny has spent his time in Nashville’s songwriting community.  He was named BMI’s Songwriter of the Year in 1986 and has over 500 songs registered with the performance rights organization.  In 2002, he scored big with another number one song Beautiful Mess, recorded by Diamond Rio, which was also co-written by Sonny, Shane Minor and Clay Mills.  Sonny is no stranger to number one hits, however, since he has scored over ten in his illustrious career and has over 17 other BMI awards and honors.

My wish is that Sonny makes it to the top of the charts again! Sonny now lives in middle Tennessee with his family and continues to crank out hit songs.

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Perhaps Porter Wagoner should be remembered as the original “Rhinestone Cowboy” because of his penchant for sparkling two-piece rhinestone often adorned with wagon wheels and other cowboy themes — at one point he owned over 60 suits. 

The longtime country music legend died at 8:25 p.m. CDT in a Nashville hospice Sunday night at the age of 80 from complications resulting from lung cancer.

Born in the Ozark Mountains of MisPorterDollysouri, Wagoner was a regular on the radio show “Ozark Jubilee.”  He signed his first record deal with RCA Records in 1955.  Two years later, he joined the Grand Old Opry, where he was a perennial favorite.  In 1960, he appeared on “The Porter Wagoner Show,” one of the first syndicated shows to be produced in Nashville, which had a 21-year run.  He was elected to the Country Music Hall of Fame in 2002.

Not only was Wagoner a consummate performer, but he also wrote many great classic country songs, one of the most memorable of which was Green, Green Grass of Home

Wagoner is also credited with giving Dolly Parton her first big break.  He hired the then-fledgling young artist in 1967 to be his duet partner.  That relationship produced a string of hits, but finally ended in a lawsuit that was settled in 1980 for an undisclosed amount.

Wagoner had recently signed a new record deal and produced his last and final album, Wagonmaster, with Marty Stuart.  It was released in June to critical acclaim.

The loss of this great legend is felt throughout the Row today, but there is perhaps a new constellation in the sky, the Rhinestone Cowboy.

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Earlier this week, Tom Baldrica, vice mcbee president of marketing at Sony BMG, announced that Heather McBee has been promoted to vice president of digital business.  McBee, who has been with the label for 14 years, was formerly senior director of that department.

Baldrica said in a prepared statement:

“I’m so proud of this promotion.  Heather has demonstrated constant growth and leadership skills in building her new media band-of-one into a full-fledged digital business department.

Originally from Clarksburg, West Virginia, McBee interned with BNA Records while attending the music program at Belmont University and was employed as a sales assistant upon her graduation in 1993.  Through various mergers and acquisitions among the various labels, she ended up with Sony BMG.  In 1997 she was picked to head up a newly formed research department which eventually evolved into the Digital Business and New Media department.  She was appointed director of that department in 2003.

A part of Leadership Music’s 2007 Digital Summit, McBee is quoted as saying

I had the fortitude to stick it out when everybody was saying “no.”

McBee credits label group chairman, Joe Galante for allowing her flexibility to prove the viability of her ideas about the future of the industry:

He asks that things be quantified. He gave me freedom to experiment…as long as I tempered my excitement and made it fit our goals and what we were doing.

Among other things, McBee was influential in moving Sony BMG into the cellular ringtone business.

 

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The Nashville Chamber Orchestra’s next installment of its Acoustic Cafe series is next Friday, November 2nd at 8 p.m. in the Grace Chapel, located in Lieper’s Fork, Tennessee.  The event will feature resident musician, Darrell Scott, and the Acoustic All-stars, which, together with the NCO, consists of Dan Dugmore, Stuart Duncan, Viktor Krauss, Kenny Malone, and Bryan Sutton. 

NCO was founded in 1990 by Music Director Paul Gambill.  It is recognized as one of America’s premiere chamber orchestras. It’s trademark Music Without Boundaries has led to critical acclaim as well as numerous recordings for Warner Brothers and other labels,  It’s educational program produced a CD entitled Kid Pan Alley, featuring songs written by noted songwriters with grade school classes around Nashville.  This project won the NCO a Grammy nomination as well as a Gold Award from the Parent’s Choice Foundation and the National Parents Publications Association.

Tickets for the show are on sale now, $25 for General Admission. Call the NCO at 615-322-1226 ext 201 or go online at www.nco.org for more information.

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360 Agency Early in October, Joey Lee, former CEO at Buddy Lee Attractions , left that agency to form 360 Artist Agency, a full-service talent agency.  This ends a very long tenure for the namesake’s son at the helm of the famous Nashville agency. 

Miranda Lambert Mr. Lee took several of his clients with him to the the new agency, including Lee Ann Womack, Miranda Lambert and Heartland, but 360’s final roster has not been published.  In addition to these three artists, Lee was the responsible agent at Buddy Lee for Bo Bice, Mark Chesnutt, Jared Nieman, Rhett Akins, and Thomas Martinez.   Tony Conway remains as president of Buddy Lee Attractions.   You can check out his current  MySpace for more information.

Lee can be reached at 903 18th Ave. S., Nashville, Tennessee 37212, (615) 360-0911.  Email: jlee@360artistagency.com.

 

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Last week, the Country Music Association announced that the next President of its Board of Directors would be Randy Goodman, president of Lyric Street Records.  Goodman, a native Nashvillian, received his bachelor of science in Political Science and Economics from David Lipscomb University.  He also attended Belmont University’s Music Business College. 

20020912_RGoodman_200x246 After graduation, Goodman spent 18 months working as a road manager.  In 1980 he was hired by Tandy Rice’s Top Billing as the agency’s publicist.  In 1981, he joined RCA Records as a publicist and spent five years living in Manhattan and Stamford, CT, while working for RCA in New York City. 

He was hired by Joe Galante, who became Goodman’s mentor. Goodman quickly ascended through the company, working with such acts as Alabama, The Judds, Waylon Jennings, KT Oslin, Restless Heart, Clint Black, Martina McBride, and Kenny Chesney.

Goodman returned to Nashville in 1995 as General Manager of RCA Label Group.  In 1997, Goodman left RCA and launched Lyric Street Records, a Disney company.  The company is now celebrating its 10th anniversary with current artist roster Rascal Flatts, SHeDAISY, Bucky Covington, Josh Gracin, Trent Tomlinson, Sarah Buxton, and Marcel.

“There’s never been a time in my professional experience in Country Music that I wasn’t aware of CMA or didn’t understand its importance — I approach this role with a great deal of humility and a great sense of honor," Goodman said.

Goodman’s term will begin on November 8, the day after the famed CMA Awards Show.  Other well-known members of the CMA Board of Directors are Bob DiPiero, Bruce Allen, Pat Higdon, Mike Dungan and Ed Hardy.  A complete list of the directors, past and present, can be read here.

Goodman and his wife Jennifer live in Nashville with their two children, Ross, 13, and Rachel, 10.

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vuLogo2Fueled in part by its success in Virgin v. Thomas, the RIAA (on behalf of EMI Music, Sony BMG Music Entertainment, Universal Music Group and Warner Music Group) issued a new round of pre-litigation letters to college students across the country Thursday of last week. This is its ninth such round of letters since beginning the campaign against downloaders nearly two years ago. This round included letters to 32 students at Nashville’s prestigious Vanderbilt University. Vanderbilt received the third greatest quantity of letters in this round, behind University of Southern Florida, with 43 and Southern California with 37.

In addition to those three institutions, the RIAA also sent letters to these 16 schools (quantity in parentheses): Drexel University (17 pre-litigation settlement letters), Indiana University (23), Northern Illinois University (25), Occidental College (19), State University of New York at Morrisville (18), Texas Christian University (20), Tufts University (15), University of Alabama (14), University of California, Berkeley (19), University of Delaware (18), University of Georgia (13), University of Iowa (18), University of Michigan – Ann Arbor (20), University of Nebraska-Lincoln (13), University of New Hampshire (30), University of New Mexico (17).

As with the more than 3,500 letters previously sent to college students at other schools, the letters gives students the opportunity to resolve copyright infringement claims against them at a discounted settlement rate before the threatened lawsuit is filed against them. A sample letter can be viewed here.  The letters are accompanied by instructions to the university administrators to forward the letter to the individuals whose IP addresses match those found by its investigators, giving the accused infringer the opportunity to promptly resolve the matter and avoid a lawsuit.

The RIAA defends its controversial methodology with statistics from the market research firm NPD Group, which concluded that college students accounted for more than $1.3 billion illegal music downloads last year.

While most unversities simply forward the letters as requested by the RIAA, some, like the University of Kansas, have taken the stance that they are not a legal agent of the RIAA and that forwarding the letter would be a violation of the students’ privacy and the Digital Millnnium Copyright Act (the “DMCA”).  They refuse to relase information with a court order or subpoena legally requiring them to do so.  The safe harbor provision of the DMCA protects Internet service providers, in this case the University, from liability for users’ online activity if they immediately remove or disable a access to identified material in a copyright infringement complaint.

It is uncertain what position Vanderbilt University will take with regard to this issue.

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Amazon.com, Inc. (Tickler Symbol: AMZN) will hold a conference call on October 23, 2007 at 5:00 p.m. ET to discuss its 2007 third quarter financial results. This announcement has tremendous relevance for those of us interested in the commercial viability of digital sales and downloads of DRM-free music — since Amazon launched its online music store, Amazon MP3, which sMP3aells songs without copy protection in this fiscal quarter, the sales of said music will be a component of the report. Many financial analysts are expecting Amazon to announce earnings of around 18 cents per share on just over $3 billion in revenue for the quarter.

Most online reviewers agree that the Amazon experience of buying digital music is very favorable when compared to iTunes. My feeling about iTunes generally is that is an overbloated, unwieldy piece of software that doesn’t do the job it was designed to do very well at all, so this favorable comparison comes as no surprise to me. Although Amazon’s MP3 store is web-based, once you download a small companion program (on either Windows or the Mac) you get a better one-click experience than Apple’s iTunes store, and the software automatically adds purchased files to iTunes, if you choose to use that software, or any of the myriad of better music players available on the Internet.

In addition to the favorable software experience, many users are impressed that Amazon offers over 2 million at an average of 10 cents less than the cost on iTunes. The offering, while only about 20% of Apple’s offerings on iTunes, is the largest collection of DRM-Free music anywhere.

Both UMG and EMI have signed up with Amazon, while Sony BMG and Warner Music Group still lurk in the Dark Ages when it comes to the digital spectrum. The only negative vibe about Amazon’s service is that UMG is slipping watermarks into the downloads to enable tracking.

According to some stock analysts, Amazon’s global site traffic rose 13 percent year-over-year in July and August.

The thing that attracts me to the Amazon model is the flexibility. The ala carte digital music can be used on any player, with any software and reproduced on as many devices as you want. It does not expire and you are not required to subscribe to any service or use any specialized players or software. This, in my opinion, is the business model of the future. As Amazon’s catalog expands, I expect that it will become increasingly more competitive than Apple.

The Motley Fool described Amazon’s chances for success in the digital music download business as follows:

Amazon sold $10.7 billion worth of merchandise last year — $7.1 billion in the form of media — but at issue here is more than just respect for Amazon’s girth. Amazon is a trusted source in music. Now it also happens to offer the better deal. If you have a choice of paying $0.89 on Amazon for a higher-quality track with no DRM, or $0.99 for a lower-quality track with portability restrictions, where will you turn?

I can only add that Amazon has an incredible database of customer preferences and cross-references. Amazon does an amazing job at suggesting impulse purchases.Most consumer already have an established account with Amazon that has established preferences. Amazon is the Wal-Mart of online merchandisers, the king of the Internet in sales. I believe it will succeed where others have failed.

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There is a very well written blog entry by McQuinn on the blog MCQESQ entitled The Future of the Music Industry.  You can read the article in its entirety here, and it is well worth the effort.  Crossroads copy2It attempts with acute perception and finesse to dispel the rampant rumors that the music industry conglomerates are are a dying breed of dinosaurs.  The essence of the authors opinion are as follows:

It’s popular to bash the labels (especially the majors) and to celebrate their apparently imminent demise.  For me, there is no pleasure in seeing people get laid off and large companies go bankrupt in any industry.  But I also dispute the idea that labels (in general) have been a bad thing for music. . . .  Without record labels recording and promoting music, we would never have heard of most of the artists that we now recognize as music legends. 

I wrote similar sentiments back in 2000 when Courtney Love bashed the very industry which gave her soap box any credibility at all.  In the article by Mcquinn, the author is not attempting to defend all record labels nor the actions of all record industry professionals, but successfully points out that without the music industry moguls’ promotion and even love of music, there would be no “superstars” for us to download!  There would only be garage bands. Ugh! (no disrespect to any particular garage band intended, but we must realize there is a reason why some bands “make it” and some don’t).

I tell my clients that they should consider the major label to be not only their marketing arm, but a bank!  The fact is, a major label will customarily spends upward to 3–5 million dollars to record, advertise, market and promote ONE act.  Granted, much of that investment is recoupable from the artists’ royalties (meaning that the artist must pay it back the money back of earned royalaties – the artist doesn’t pay it back if the label cans them), however, it still garners the artist a very valuable commodity:  name recognition.  How many superstars can you name off the top of your head?  Madonna.  McCartney.  Garth.  Prince.  Dolly.  The Eagles.  Elvis.  Elton John.  I may be dating myself a bit here, but you get the idea – without the record labels, these artists would not have what they have today – the ability to annouce a concert date and sell it out a 200,000 seat venue within hours, for example.  Is it totally fair to denounce the industry that helped these artists become the superstars that they are?  Is it fair to expect that industry to take no profits from the product we so much enjoy? 

So, what about the rumor that the major labels are heading for an imminent demise?  A recent article in the September 2007 issue of Country Aircheck entitled Music Sales at a Crossroads – Labels Face the CD’s Swan Song gets a little more specific.  The article cites RIAA-compiled data that illustrates that the gross sales of the CD format have diminished by almost one third since 1999, when it was over 14 billion, to 9 billion last year.  In the country genre, where the CD format is still a popular one, total sales through September 2007 were 31 million units, whereas the genre tallied a total of 75 million units last year.  Overall, total sales of CD for all genres is down 20% over the same time last year, a very significant drop.  While I do not believe the music industry is going away, I do believe that the CD format will ultimately be gone.  Tower’s demise was a forecast of this inevitability.

In the past, loss in profits from one format meant a rise in profits from another format, as, for example, when the CD format replaced records and cassettes, or when cassettes replaced 8–tracks (for those of you old enough to remember tape-based product).  But in today’s market, the sell of digital downloads is not generating enough profilt to offset the loss of profits from the demise of CDs.  Why, you might ask?  I think all of us know that the reason for this is that the majority of songs being consumed today are either ripped from somone else’s CD or iPod, or they are obtained over the P2P networks.  Those methods of obtaining music do not profit the artist, the songwriter, or, of course, the record labels.

McQuinn’s article points out that the label must find alternative methods of making profits, and mentions touring, merchandising and expanded licensing.  This is not a new concept as, in fact, I have already started seeing contracts from labels taking an interest in more of the revenue streams than they have in the past.  As Joel Galante, chairman of Sony BMG Nashville, points out in the Country Aircheck article, “you can’t have the label engine driving everything and being compensated the way it was before.  We are taking most of the risk and there are a lot of revenue streams making money.”  The trend in the music industry is for more independent-type deals with the artist in which the artist actually becomes a partner with the label.  I also believe that we will see a resurgence of the “single” concept and/or the “mini-album” and a shift away from the 10–12 song album idea.

The music industry will also find reprive in the form of direct-to-retail marketing.  The Eagles release through Wal-Mart is only one in a long chain of well-known artist who have found their own path to the retail market — Prince, McCartney, Radiohead, Nine Inch Nails — circumventing the Big Four:  Song BMG, Warner, UMG and EMI.  These artists are certainly blazing new trails and have been successful.  The major labels, however, still maintain that they have the edge when it comes to developing and promoting artists and/or distributing their product.  In view of the success of the aforementioned artists, however, this point is certainly not a given anymore. 

We are, as I said in earlier articles and blogs, facing a new paradigm in the music industry.   The major labels have yet, in my opinion, found the holy grail of digital downloads.  What can the labels do to move into the 21st century?  The answer cannot be yielding 90% of the market to iTunes.  Labels have to take the lead of EMI and UMG and offer their music without any digital rights management — after all, the music on CDs is DRM-free!  They must abandon the misplaced trust in “subscription-based” services which require monthly fees.  As I have maintained in my ten years of analyzing and thinking about this issue, I believe that they must do what all good entrepreneurs have done:  find a price point that will make it foolish for people to download music through a P2P and risk litigation.  Sell the product at a reaonsable price.  Most people, myself included, want to pay for their music — they just don’t want to overpay for their music.  The first configuration of label and online distributor that finds that right combination of value and profit — i.e. the right price point — will be the significant winner in my opinion.

 

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