I read yesterday where the current vetting process for possible appointees to the new Obama administration involves a 7 page, 63 question form designed to reveal any dirty laundry lurking a potential nominee. Apparently, the questions even delve into diary entries, blogs (Aargh! There goes my shot at Secretary of State) and potential conflicts of interest involving spouses, family members and close associates. Once the new administration gets done cleaning up the political world from all appearances of shadiness, maybe they can go to work on the music business. Where the weasels are, you can be sure to find an endless supply of double dipping, nepotism, and palm greasing, along with enough conflicts of interest to keep a Senate inquiry busy for decades.
Of course, many of these conflicts of interest are blatant—in fact, they seem to be tolerated primarily because they are so unabashedly out in the open. Back in the golden days of the industry, no one cared that uber-lawyer Allen Grubman represented both Bruce Springsteen and CBS President Walter Yetnikoff when the two of them were negotiating Springsteen’s contract. After all, the whole reason that artists and executives used Grubman was because everyone else did. Likewise, people look the other way today at top executives holding down major label A&R gigs, consultancies at competing labels, and partner-shares in a management companies or publishing companies all at the same time. If you want to work with a player, you have to let him or her play the game.
But there are other conflicts of interest that are subtler, particularly when they involve large corporations, often ones with artist or writer rosters that stretch into the thousands. One such issue has grabbed headlines recently, involving legendary songwriters and artists Hall & Oates, and their venerable hit “Maneater”. Check out the story below:
It seems that Hall & Oates are accusing Warner Chappell of allowing other writers to rip-off their 1982 hit “Maneater”. It’s a strange charge. For all the vile and stupid things of which publishers are customarily accused, not protecting hit copyrights is one that rarely comes up. After all, this is one area in which the writer’s and publisher’s interests converge. Everyone wants to protect the hits in the catalog, don’t they? Hmmm….
Unless of course the publisher represents both the copyright being ripped off, and the people doing the ripping. Herein, as they say, lies the rub. “Warner Chappell failed and refused to take action based upon a conflict of interest of its own making”, says the Hall and Oates suit. “Warner Chappell publishes and/or administers the copyright interests of two of the infringers.”
While the lawsuit does not identify who the “infringers” are, it has not been lost on anyone in the industry that
Nelly Furtado released a song by the same name, which just happened to be written with two Warner Chappell writers, Timbaland and Nate “Danja” Hills. Does something smell funny to you?
This is the challenge for the new mega-sized major publishers. The good news for Warner Chappell is that they represent Hall & Oates, two songwriters inducted into the Songwriters Hall of Fame in 2003, and they also represent two of the hottest writers in contemporary urban and pop music,
Nate “Danja” Hills.
That’s would be the envy of any publisher. But the problem is: what do they do when there is conflict between writers, and they represent both sides? No one wants to be caught in the crossfire.
There’s an incident to which I was a witness that I like to use in my Berkleemusic.com Music Publishing 101 course, as a topic for one of our chat discussions. It is a true story of two writers who wrote a song that was to be the single for a Very Big (selling) Pop Star.
Given that there were only two writers involved in the song, the initial split of the composition between the writers was an even fifty-fifty, with each writer owning one-half of the composition. So far, so good. But before the song demo was finished, the writers had decided to add a sample—with that, 20% of the song was gone.
Then, once the song was chosen as a single contender, the president of the label decided that the song needed additional production and a remix. He sent it down to his A&R Vice-President, who, not too surprisingly, decided that he should be the one to do that new production—and he did, adding a second sample in the process. Unfortunately, that sample was a bigger one, and took up 50% of the composition. Now the original two writers no longer owned 50% each of their song. Thanks to two samples, they each owned 15% of their song. It gets worse.
Not content with grabbing a production credit, the A&R person then decided that he too should have a portion of the writer’s share, for selecting the sample that would run throughout the track. That meant the writers could say goodbye to another 10%. Now each original writer owned only 10% of the song.
But of course, there was one person still left to accommodate. That Very Big Pop Star was not accustomed to singing songs in which she did not have a hand in writing. Cost? 10%. After all was said and done, the original writers of the song were left with only 5% each of the song they wrote together—a song that did become a big hit. Ouch. This is the kind of thing that can leave writers, and publishers, very bitter.
But not in this particular case. Interestingly, it turns out that the publisher who represented the two original writers also represented everyone else. They published the A&R person and his “writing” share. They owned one of the songs being sampled. They published the artist as well. So while the two writers seem to have gotten shafted, the publisher actually came out in much the same position as when the process started. The publisher simply collected on behalf of seven or eight different writers, rather than two.
Needless to say, that’s the conflict. How hard did the publisher fight to protect the original writers from the A&R person’s grab at a writing percentage—when the publisher represented the A&R person as well? How strenuously did the publisher negotiate on either side in the sample clearance process? What chance did the writers have of resisting the demand by the artist for writer’s share, when their publisher was working for both sides (and probably had a lot more invested with the superstar artist)?
As the major publishers grow ever more vast, these sorts of conflicts become increasingly inevitable. My advice? Remember that you’re in the jungle. Never simply assume that your publisher has your interests at heart. Despite their best intentions, they may also be subject to competing interests that can undermine their defense of your work. If you find yourself in a dispute of some kind, make sure that you understand who else is on your publisher’s roster, and give some thought as to where the real priorities of the publishing company might lie. Then rely on your own lawyer to keep the publisher honest.
On a larger scale, you may want to ask whether or not a big publisher is right for you. While there is a value to the global reach and industry influence of a major publisher, there are also drawbacks, and conflicts of interest are one inevitable issue. Everyone loves tossing a big name like Warner Chappell around. But as
Hall & Oates might say, “watch out boys, she’ll chew you up…”