Music Publishing & Songwriting

I was recently called to testify in a lawsuit involving copyright infringement: an unknown songwriter, who will remain that way for the purposes of this blog, was claiming that a song written by a very well-known writer/artist, which appeared on a multi-platinum album, was in fact, stolen from the unknown writer. As the Creative Director at the music publishing company that published the very well-known writer, I had only the most distant relationship with the writer and almost no knowledge of the song in question. Nevertheless, I was dragged into the situation,largely because the unknown writer had used biographical information about me that is easily accessible on the internet. The unknown writer had decided to try to use me as the link between the well-known writer and himself. In a nutshell, here was the basic information in the case:

The only similarity between the two songs in question was the title, and the fact that both songs included some rapping. Obviously, there are thousands of other songs that share that title as well. It is not possible to copyright a title or an idea, nor is it possible to copyright the idea of rapping (though I wish I’d thought of it).

The unknown writer claimed to have written the original song more than fifteen years prior to the release of the well-known writer’s song. However, the unknown writer could not produce any registrations of the song, or even a demo tape of the original version.

Required to explain how the well-known writer would have gained access to an unreleased song written when he was probably 7 or 8 years old, the unknown writer claimed to have had a meeting in New York with two A&R people (one of which was yours truly) at the record/publishing company that would, almost twenty years later, become the home of the well-known writer/artist. The hypothesis seemed to be that one or both of the A&R people had heard the song in the late 1980’s, and held onto it until around the year 2000, when they played it to the well-known writer and producer.

However, employment records revealed that I was not actually an A&R person at the record/publishing company until almost ten years after the alleged meeting took place. The other A&R person was an employee of the company at the time of the meeting, but worked in Chicago, not New York. Interestingly, the unknown writer was unable to identify the exact date of the meeting, where it took place, where the office was located, or what songs were presented at the meeting.

Needless to say, this did not seem to present a very credible case of copyright infringement. The unknown writer’s authorship of the original song was impossible to verify, given the lack of any registration, commercial release, or even physical recordings. The whole matter of infringement seemed to hang on the use of the same title between two songs, which is not a copyright violation. The proof of access, which must be shown in order to constitute a copyright infringement, hinged on a meeting for which the plaintiff could offer no evidence, and which all employment records indicated could not possibly have taken place.

Happily, the case did not actually go to trial. What it did do was this: it dragged on for more than a year, ran up thousands and thousands of dollars of legal fees, suspended royalty payments to the well-known writer, and required the deposition of the well-known writer/artist, several other co-writers, and several industry executives. This might explain why, even with all evidence in his favor, the well-known writer/artist and his publishing company agreed to settle the case and to pay the unknown writer a small sum of money to drop his claim. Economically, it was far more practical to pay a small settlement, even if it was entirely unjustified, than to incur the additional costs of a trial.

If you’re wondering why copyright infringement disputes are one of the few growth areas in the music industry, the previous story should give you a good hint. Increasingly, it seems that writing a hit song almost guarantees an accusation of plagiarism and a demand for money. As in most things involving lawyers, the game is never as simple as it seems. More often than not, the issue is settled with cash out of court, under the assumption that it’s cheaper to settle a false allegation than be vindicated in court at the cost of hundreds of thousands of dollars in legal fees. Of course, the willingness to settle only begets more crazy claims, which then starts the whole process all over again.

Am I saying that there is never an instance in which one well-known, proven hitmaker borrows from another, perhaps unconsciously? Of course not. George Harrison’s “My Sweet Lord” is the same as “He’s So Fine”. It doesn’t mean George Harrison knowingly stole it. But it does mean that he infringed on the copyright, and owes something to the original writers. Are there cases where a little known songwriter finds his or her song suddenly transformed into a worldwide hit, only to find that the name of the original writer has vanished? Certainly there are– in fact, there have been several recent stories about Michael Jackson’s appropriation of “Soul Makossa” for “I Wanna Be Startin’ Something”. And every publisher knows that disputes between songwriting partners as to who did what and who owns what percentage are an everyday fact of life.

That said, I will bluntly go on record to declare that I believe the vast majority (probably eighty percent) of the copyright infringement cases involving top hit songs are complete nonsense, dreamed up by delusional (best case) or opportunistic (worst case) hacks trying desperately to scam their way into some money. They have learned that most major publishers would prefer to pay what it takes to make the problem go away rather than be tied up in litigation for years. The truly unfortunate aspect of this issue is that the songwriter, who may have worked and waited years for that one big hit record, is the one who ultimately winds up paying, both economically and emotionally.

I’ve never been one to preach paranoia, and I still believe that you can’t afford to let copyright infringement fears make you overly cautious about getting your material out to the public and the industry. I do always recommend four basic steps to fend off the most common problems:

1. Always have a letter signed by each writer at the end of a writing session to designate (a) when the song was written (b)who the writers were (c) the percentage controlled by each writer (d) the contact information for each writer. I also recommend identifying the engineer (if there was one), the studio, and any other musicians that may have been involved. Most copyright disputes are between collaborators, or at least between people who know each other and work together frequently.

2. Register your songs, in some manner, once they’re completed. That doesn’t necessarily mean registering them with the Copyright Office, which can get expensive. If you’re a member of ASCAP, BMI or SESAC, it may be easier to register them there. You can also use the “poor man’s copyright” method of sending yourself an unopened envelope containing the song. But somewhere, try to make a record showing the existence of the song.

3. Keep your records. Hang on to work tapes, records of pitch meetings (and identify what songs were pitched), work for hire agreements with musicians or singers, and correspondence. All of these can be vital in defending yourself against a claim.

4. Don’t take it personally. If you’re involved in a dispute, try to remember what’s really at stake: Money. Copyright disputes are best treated like business matters, not issues of morality. The well-known writer that settled the bogus copyright dispute at the beginning of this blog was right, even if it was an unfair outcome. If it’s a fight about money, then you have to do what makes economic sense.

On that last subject, there’s a new service being offered by the Nashville Songwriters Assn. International, that may make a lot of economic sense for some songwriters. If you’re someone who regularly has songs commercially released, you may want to consider NSAI’s recent partnership with insurance agency Frost Specialty, which has created a copyright-infringement insurance policy for NSAI members.

This group plan allows songwriters to pay relatively low premiums for a moderate level of coverage. In the past, writers often had to purchase at least $1 million dollars worth of coverage, which is very expensive. Under the NSAI policy, writers can pay premiums as low as $1,500 for $100,000 of coverage– most copyright disputes are settled for less than $100,000.

Kudos to NSAI, which is truly one of the most effective songwriter organizations in existence (and one to which every songwriter should belong anyway) and to NSAI president (and legendary country songwriter) Steve Bogard for taking on a very challenging problem. Remember– in our society, anyone can sue anyone for anything, with or without cause. The plaintiff may not win, but for the accused, who finds his or her money frozen, legal fees mounting, and reputation damaged, it may not matter who wins. If you’re making a living at songwriting, I would strongly suggest that you consider the necessity of the NSAI-Frost policy. Check it out at:

http://www.frostspecialty.com

I was recently called to testify in a lawsuit involving copyright infringement: an unknown songwriter, who will remain that way for the purposes of this blog, was claiming that a song written by a very well-known writer/artist, which appeared on a multi-platinum album, was in fact, stolen from the unknown writer. As the Creative Director at the music publishing company that published the very well-known writer, I had only the most distant relationship with the writer and almost no knowledge of the song in question. Nevertheless, I was dragged into the situation,largely because the unknown writer had used biographical information about me that is easily accessible on the internet. The unknown writer had decided to try to use me as the link between the well-known writer and himself. In a nutshell, here was the basic information in the case:

The only similarity between the two songs in question was the title, and the fact that both songs included some rapping. Obviously, there are thousands of other songs that share that title as well. It is not possible to copyright a title or an idea, nor is it possible to copyright the idea of rapping (though I wish I’d thought of it).

The unknown writer claimed to have written the original song more than fifteen years prior to the release of the well-known writer’s song. However, the unknown writer could not produce any registrations of the song, or even a demo tape of the original version.

Required to explain how the well-known writer would have gained access to an unreleased song written when he was probably 7 or 8 years old, the unknown writer claimed to have had a meeting in New York with two A&R people (one of which was yours truly) at the record/publishing company that would, almost twenty years later, become the home of the well-known writer/artist. The hypothesis seemed to be that one or both of the A&R people had heard the song in the late 1980’s, and held onto it until around the year 2000, when they played it to the well-known writer and producer.

However, employment records revealed that I was not actually an A&R person at the record/publishing company until almost ten years after the alleged meeting took place. The other A&R person was an employee of the company at the time of the meeting, but worked in Chicago, not New York. Interestingly, the unknown writer was unable to identify the exact date of the meeting, where it took place, where the office was located, or what songs were presented at the meeting.

Needless to say, this did not seem to present a very credible case of copyright infringement. The unknown writer’s authorship of the original song was impossible to verify, given the lack of any registration, commercial release, or even physical recordings. The whole matter of infringement seemed to hang on the use of the same title between two songs, which is not a copyright violation. The proof of access, which must be shown in order to constitute a copyright infringement, hinged on a meeting for which the plaintiff could offer no evidence, and which all employment records indicated could not possibly have taken place.

Happily, the case did not actually go to trial. What it did do was this: it dragged on for more than a year, ran up thousands and thousands of dollars of legal fees, suspended royalty payments to the well-known writer, and required the deposition of the well-known writer/artist, several other co-writers, and several industry executives. This might explain why, even with all evidence in his favor, the well-known writer/artist and his publishing company agreed to settle the case and to pay the unknown writer a small sum of money to drop his claim. Economically, it was far more practical to pay a small settlement, even if it was entirely unjustified, than to incur the additional costs of a trial.

If you’re wondering why copyright infringement disputes are one of the few growth areas in the music industry, the previous story should give you a good hint. Increasingly, it seems that writing a hit song almost guarantees an accusation of plagiarism and a demand for money. As in most things involving lawyers, the game is never as simple as it seems. More often than not, the issue is settled with cash out of court, under the assumption that it’s cheaper to settle a false allegation than be vindicated in court at the cost of hundreds of thousands of dollars in legal fees. Of course, the willingness to settle only begets more crazy claims, which then starts the whole process all over again.

Am I saying that there is never an instance in which one well-known, proven hitmaker borrows from another, perhaps unconsciously? Of course not. George Harrison’s “My Sweet Lord” is the same as “He’s So Fine”. It doesn’t mean George Harrison knowingly stole it. But it does mean that he infringed on the copyright, and owes something to the original writers. Are there cases where a little known songwriter finds his or her song suddenly transformed into a worldwide hit, only to find that the name of the original writer has vanished? Certainly there are– in fact, there have been several recent stories about Michael Jackson’s appropriation of “Soul Makossa” for “I Wanna Be Startin’ Something”. And every publisher knows that disputes between songwriting partners as to who did what and who owns what percentage are an everyday fact of life.

That said, I will bluntly go on record to declare that I believe the vast majority (probably eighty percent) of the copyright infringement cases involving top hit songs are complete nonsense, dreamed up by delusional (best case) or opportunistic (worst case) hacks trying desperately to scam their way into some money. They have learned that most major publishers would prefer to pay what it takes to make the problem go away rather than be tied up in litigation for years. The truly unfortunate aspect of this issue is that the songwriter, who may have worked and waited years for that one big hit record, is the one who ultimately winds up paying, both economically and emotionally.

I’ve never been one to preach paranoia, and I still believe that you can’t afford to let copyright infringement fears make you overly cautious about getting your material out to the public and the industry. I do always recommend four basic steps to fend off the most common problems:

1. Always have a letter signed by each writer at the end of a writing session to designate (a) when the song was written (b)who the writers were (c) the percentage controlled by each writer (d) the contact information for each writer. I also recommend identifying the engineer (if there was one), the studio, and any other musicians that may have been involved. Most copyright disputes are between collaborators, or at least between people who know each other and work together frequently.

2. Register your songs, in some manner, once they’re completed. That doesn’t necessarily mean registering them with the Copyright Office, which can get expensive. If you’re a member of ASCAP, BMI or SESAC, it may be easier to register them there. You can also use the “poor man’s copyright” method of sending yourself an unopened envelope containing the song. But somewhere, try to make a record showing the existence of the song.

3. Keep your records. Hang on to work tapes, records of pitch meetings (and identify what songs were pitched), work for hire agreements with musicians or singers, and correspondence. All of these can be vital in defending yourself against a claim.

4. Don’t take it personally. If you’re involved in a dispute, try to remember what’s really at stake: Money. Copyright disputes are best treated like business matters, not issues of morality. The well-known writer that settled the bogus copyright dispute at the beginning of this blog was right, even if it was an unfair outcome. If it’s a fight about money, then you have to do what makes economic sense.

On that last subject, there’s a new service being offered by the Nashville Songwriters Assn. International, that may make a lot of economic sense for some songwriters. If you’re someone who regularly has songs commercially released, you may want to consider NSAI’s recent partnership with insurance agency Frost Specialty, which has created a copyright-infringement insurance policy for NSAI members.

This group plan allows songwriters to pay relatively low premiums for a moderate level of coverage. In the past, writers often had to purchase at least $1 million dollars worth of coverage, which is very expensive. Under the NSAI policy, writers can pay premiums as low as $1,500 for $100,000 of coverage– most copyright disputes are settled for less than $100,000.

Kudos to NSAI, which is truly one of the most effective songwriter organizations in existence (and one to which every songwriter should belong anyway) and to NSAI president (and legendary country songwriter) Steve Bogard for taking on a very challenging problem. Remember– in our society, anyone can sue anyone for anything, with or without cause. The plaintiff may not win, but for the accused, who finds his or her money frozen, legal fees mounting, and reputation damaged, it may not matter who wins. If you’re making a living at songwriting, I would strongly suggest that you consider the necessity of the NSAI-Frost policy. Check it out at:

http://www.frostspecialty.com

Those that can’t do, teach, right? We’ve all heard that one. But would about teachers who did whatever it is that they’re teaching? Or those that are still doing whatever it is, while they’re teaching? They can do and teach, right? Like a living, breathing textbook.

Not exactly.

Anyone who’s taken my course, Music Publishing 101 at Berkleemusic.com, or who has read my book “Making Music Make Money” will know a couple of things. The first is that I was in fact, a songwriter– for about 15 years. The second thing my readers or students will know is that I am still a music publisher. Any weekday, you’ll find me in the office like every other music business weasel– trying to find a way to keep my company’s income, and my writers income flowing in…

Last but not least, if you’ve ever checked out either my course or the book, you’ll know that I can go on forever about the importance of split letters, and catalogue information. Here’s a little quote for you:

“If music publishing is your business, then songs are your assets…not unlike inventory to a store, or airplanes to an airline. And if that’s the case, they should be treated with care. You must know what songs you have OWNERSHIP in, and how much of them you own… And you must establish ORDER within that catalogue, so that each song is properly identified, easily accessible, and part of a coherent cataloguing system”.

The message I try to bring home to songwiters is that by default, you are your own publisher. That means that it’s up to you to make sure you have split letters that define your ownership percentage of the song, and that you’d better have some kind of system for keeping track of what you write, and who you wrote it with. If you don’t do it, no one else can.

Which is why I find my recent experience so incredible. Last week, I received a letter informing me that I was part of a Class Action lawsuit, involving a major television network, and a long-running soap opera, which regularly used a variety of songs in the show. Apparently, back in my previous life, I had written a song that was used in this particular soap opera. This much I vaguely remember.

From the barrage of legalese in the letter, I was able to discern that this soap opera had subsequently failed in some way to properly license the songs featured in the show (hundreds of them, over a decade’s worth of episodes) when the soap opera was eventually syndicated all over the world. Now, all of the writers were getting a big pot of money in the form of a settlement, which would be split up between everyone involved. All I had to do in order to collect my share was provide them some simple information about the song I had in the show.

Oh. That’s all, huh? Except I didn’t even recognize the title of the tune. Nor did I have the slightest recollection of who I might have written the song with. To be fair, it was at least 10 years ago. At least I think it was– I couldn’t remember when I wrote the song either. Or which publisher I was with at the time. In short, I couldn’t recall one single useful piece of information about the song.

But of course, I had written records I could consult. Right? Uh… no. Not only did I not have any kind of comprehensive cataloging system from that time in my writing life– I didn’t even have the music available. All I had were some old DATs, which I couldn’t find– and for which I lacked the all-important DAT player. It appears that my pot of gold at the end of the rainbow will be split among people other than me– people who can actually keep some kind of written records of their business.

Wow. What a role model, right? Pretty embarrassing, especially for someone who teaches Music Publishing 101. But I prefer to think of it as a selfless sacrifice in the name of education. After all the lecturing, what could hammer the point home more effectively than this vivid example of my own stupidity?

This situation is a perfect example of why cataloguing, record-keeping, split letters, and the like are so important. Because 10 years later, 20 years later, even 50 years later, things come up. Lawsuits surface, disputes between heirs of copyrights rear their ugly head, songs are rediscovered and revitalized, or soap operas are sold into syndication. You’ve got to have some paper– because you won’t remember the details.

You can trust me on that.