Interview on Music Publishing Podcast

Before the Memorial Day holiday, I had the pleasure of being interviewed by my friend and colleague, the composer Dennis Tobenski. Our 90-minute talk, which was posted last week, covered a variety of topics applicable to composers, songwriters and other creators, including copyright principles, fair use, the role of PROs and estate considerations for artists.

Here’s how Dennis summarized our discussion:

In our conversation, we talked about:

  • basic tenets of copyright
  • the limits of what is copyrightable
  • the Poor Man’s Copyright
  • the benefits of and incentives to registering your copyrights
  • fighting infringements
  • folio registrations
  • working with living poets vs. dead poets’ estates
  • Performing Rights Organizations
    • selecting
    • collecting performance royalties
    • what PROs don’t do
  • estate planning for artists
  • international copyright issues
  • why you should get permission <strong>before</strong> setting a text
  • First Sale Doctrine
  • licensing vs. selling
  • copying licenses
  • Fair Use
    • Fair Use is not a right; it is a defense against an infringement accusation*
    • the four factors of fair use
    • transformative use vs. derivative works
    • the false “rules of thumb” of fair use

And here’s the link to our talk:

 

Five Things Composers Should Ask About Working With a Publisher

In December, I was invited by Jennifer Higdon to speak about various aspects of the music business to the Curtis Institute’s Composers’ Forum. I was peppered with some very pointed questions about the music publishing prospects for emerging composers. The students were justifiably skeptical because a publishing deal isn’t for everyone. But there are also alternatives besides signing your works away to a publisher or doing everything yourself.

Here are five questions a composer should ask to determine whether a publishing deal makes sense:

1. What exposure do you already have? Just as a record label won’t sign a band that doesn’t already have a following and a self-produced album, publishers need to see that you are worth the investment of their resources. So, if you already have a resume that includes performances, awards, commissions and residencies (not all boxes need be checked) that’s a foundation a publisher can build upon. It also shows that you’re serious about your career and are willing to work at it.

2. What kind of works do you mostly write? Publishers are best when dealing with large-scale works such as orchestral works or operas. And even if a composer submits a Sibelius or Finale “manuscript” it’s still very costly and time-consuming to produce performance materials acceptable to professional orchestras and opera companies. Because they are voluminous and expensive to produce, performance materials for symphonic and operatic works are rented rather than sold. Publishers make the most money, both for themselves and the composers they represent, from the rental and performing rights income.

Works for smaller ensembles, such as string quartets, works for solo piano, piano and voice and other ensembles of say, eight players or fewer, are mostly sold rather than rented. After deducting print costs, publishers make much less money off of these works. Public performance income is also typically much lower than a larger-scale work of comparable length. Similarly, works for concert band or chorus are also sold rather than rented. These will be “new issued” like books and will generate sales in the first year or two. After that, unless the composer continues to supply new product, i.e., new band or choral pieces, a single work will likely languish – as far too many composers have found out the hard way.

3. Who’s performing your music? If you’re a member of an ensemble and you write for that group there’s no need for a publisher intermediary. You also have to ask yourself if you really want other groups to perform your music. And even if you do, if your ensemble has unique instrumentation it’s less likely that other groups will program your works.

4. Will a publisher promote my music? Publishers have long-established relationships with artistic administrators at orchestras, opera and ballet companies, as well as domestic and international music festivals, individual conductors and soloists. However, all publishers have an existing roster of composers that need care and feeding. For example, at Boosey & Hawkes, where I used to work, not only do they have living composers like Adams, Reich and Rouse, but the heirs of Bernstein, Carter, Copland, Stravinsky and many others still want these composers’ works programmed as much as possible. Classical publishers haven’t been immune from the ills that have plagued the music industry for more than a decade. And everyone’s promotion staff is stretched thin. That said, some publishers do a better job than others. Ask around.

5. Do I really want to handle the business of being a composer? This includes photocopying and shipping scores and parts, negotiating commissions and license agreements, managing expenses and being your own publicist. Some composers are good at this and enjoy it. Others, not so much.

*****
In short, if you are a composer that writes mostly smaller-scale works, particularly if it’s for your own ensemble, you may well be better off selling downloads from your own web site.

However, if you:

– want to write large-scale works
– have an existing catalog that’s generating some income
– are getting commissions and performances
– have gotten some awards and/or a residency or two

Then, a publishing deal may be something to consider.

However, publishers sign very few composers. Boosey, Schirmer, Presser, Peer, Peters, Schott, Subito and any others will sign only about a handful of composers a year combined – not each. That’s less than a composer per publisher per year. Why? Because it’s a very expensive, long-term commitment and each of these publishers has continuing obligations to its existing composer roster.

Bonus Question: What should I ask if a publisher’s interested in me?

Here are five basic questions to ask:

– Will they pay an acquisition fee for my “back catalog” of pre-existing works?

– Will they pay an advance on royalties for works written during the term of the contract?

– Will I retain ownership of any portion of the copyrights to my works or will the publisher own them outright? In other words, am I being offered a publishing, co-publishing, administration or distribution deal – or some combination of them?

– What are the royalty splits for various income types (print, rental, grand rights, synch, etc.)?

– How will they promote my works, including increasing my income and getting commissions for me?

Those are just the preliminaries. A typical publishing contract has many other terms that need to be understood and often negotiated. Entering into a publishing agreement can be the most important career decision a composer can make. Any composer contemplating signing up with a publisher should consult with a knowledgeable attorney. And a good lawyer can also suggest and negotiate possible alternatives to a pure publishing or pure DIY relationship, such as hiring a publicist, administrator or music distributor.

Song Cycle Saturday

This past Saturday, I got to spend some time with my dear friends, Frank J. Oteri and his wife, Trudy Chan.  Although their peripatetic travels have made such occurrences recent rarities, this particular occasion was unique: it was an evening of Frank’s music. Frank, is, of course, an ubiquitous and unmistakable presence at new music concerts. However, he’s there most often in his role an advocate for, and writer about, the music of other composers.

But Saturday night, his music took center stage. The concert, “Versions of Oteri,” consisted of two song cycles and two solo piano pieces, performed by Ms. Chan and the amazingly versatile Phillip Cheah, who sang both in baritone and male soprano voices, not only within the same movement, but often within the same phrase – more on that later.  Phillip also, performed one of the piano pieces and at one point even joined Trudy at the piano to play some dramatic sound clusters that concluded one of the movements of the song cycle.  (No, he doesn’t juggle. I asked.)

The performance took place at the Tenri Cultural Institute in Greenwich Village and the 90-seat space was filled to capacity with numerous other composers – no doubt a tribute to Frank but perhaps also something of a spin on Yogi Berra’s maxim that you should “always go to other people’s funerals otherwise they won’t go to yours.”  Frank’s spoken remarks about his music were brief, although he noted that he provided, as he is wont to do with other composers, lengthy and detailed program notes.

The song cycles were the focus of the concert, with the piano pieces serving as brief, but entertaining intermezzi. The first, “Versions of the Truth,” was a world premiere, consisting of settings of 12 Stephen Crane poems, he of the “Red Badge of Courage.” Frank described the poems as truly weird. So, he is just the composer to set such oddities! He wrote the cycle specifically for Phillip and Trudy and the vocal writing encompassed the lowest registers of Phillip’s baritone as a well as the highest of his soprano – and everything in between.

The second song cycle which concluded the concert, “the nurturing river,” had more personal resonance for me, partly because of the style of the writing but also because of its unusual back story. Frank had set a series of fourteen sonnets by his former teacher and long-time friend and sometime musical collaborator, James R. Murphy. Murphy was in attendance, along with his son, both of whom Frank has played with over the years in the neo-Bluegrass group, “The String Messengers” and it was at those performances I first met the Murphys.

Frank wrote the piece in 1982. As he and I are the same age, I thought about what I was writing in 1982: a few solo piano works, a duet for clarinet, but nothing so ambitious. I hadn’t even started writing songs yet. As Frank explained, the work was deemed impossible to sing by several singers. And so it remained until more than two decades later when he met Phillip.

Although I had heard a couple of the movements performed last year, Saturday marked the first complete public performance of the cycle. And to my ears and amazement, this work seemed to me even more ideally and idiosyncratically suited to Phillip’s specialized vocal skills than the piece that he’d actually written for him. Phrases that changed registers and timbres seemed fluid and natural – something that would be nearly impossible if the work were sung by a male and female singer. Somehow, Frank must have been channeling Phillip, someone who was very young and living many thousands of miles away when the work was written.

As to the solo piano interludes, the first, “Palindrome,” consisted of the working through of various combinations and permutations of a single short phrase, incorporating both serialist and minimalist techniques. As a work from Frank’s student days at Columbia, it did have a certain academic, experimental air to it. The second piano piece, “Setting the World at Five and Seven” was a jauntier effort, juxtaposing 5-beat and 7-beat rhythmic cycles over a 12-bar blues progression.

Prior to joining Frank, Trudy and Phillip for a post-concert dinner, I told Phillip and Trudy that I’d written the music for a new song, one that will exploit Phillip’s unique vocal skills in a humorous and perhaps schizophrenic way. Now I just have to write the lyrics.  I’ll have to do that in between teaching, getting  ScoreStreet going and launching my new Legal Tune-up service specially formulated for composers and other creative types.  Meanwhile, I hope Frank finds more time to write music and that there are more performances of his varied, expressive and enjoyable works.

But first, I’ll have to reply to his NewMusicBox post in which he takes issue with some post-concert conversation wherein I and another songwriter friend of his maintained that writing lyrics is harder than writing the music.  If you’re writing a verse-chorus song, for example, one verse and one chorus and you’re done with the music. One and done doesn’t cut it with the words.

Getting Permission to Use Copyrighted Texts in Musical Works

For those of you who read my articles on the commissioning process, you’ll recall that one of the things a commissioning contract will typically contain is a clause stating that you’ve cleared the rights to any copyrighted text or music you use in your work. Music publishers put similar clauses their writer agreements and labels have them in their artist contracts, too.

Let’s say you’re a composer and you want to set a text by your favorite poet. If your selected sonneteer happens to be Shakespeare, Elizabeth Barrett Browning or some other person who’s been dead for several hundred years, then there’s no problem since their works are in the public domain. But what if the versifier of choice is only more recently deceased or even happens to be a living, breathing writer like you? Then you’ll need permission to use the poem. Why? Because their works are still under copyright. Setting a copyrighted text to music constitutes making a “derivative work” of that text and the Copyright Act gives the copyright owner the exclusive right to do that in Section 106. And trust me, you can’t claim “fair use” if you use a whole stanza, let alone an entire poem, for the text of your composition.

You’ll always want to get permission before you write that magnum opus. If you write the piece first, especially if it’s a large-scale commissioned work like a song cycle for tenor and orchestra, there’s a good chance you’ll find yourself in deep doo doo if the copyright owner of your chosen text just says “no,” which they have every right to do. Weeks or months of precious writing time will be wasted and you’ll undoubtedly miss the delivery deadline under your commissioning agreement. Even if you can get permission, the rights holder will be able to drive a very hard bargain on the price and may even demand a piece of the copyright to your work if they know you’ve already written your masterpiece around their poem.

So whose door do you go knocking on? It could be a publisher or a literary agent. Start with the copyright page at the front of the anthology that contains the text. Send a short, polite note to the permissions department of publisher listed for the text, explaining who you are and what kind of kind of work you wish to write. Also ask the publisher to refer you to the appropriate rights holder if they aren’t it.

As for the specific rights you’ll need, these include the right to perform your work indefinitely, to have printed music made available and to be able to record the work, both in sound recordings and in audiovisual works. You’d be amazed how often composers, thinking only about the premiere, will only get the right to perform the work for a short time and neglect to obtain, or even ask for, the necessary publication and recording rights.

You’ll also need patience and persistence. It can take anywhere from a few weeks to several months of follow-up emails and voicemails to get a response and then negotiate a deal once you get to the proper rights holder. Don’t pester and always be polite. Otherwise, you’ll guarantee a slow — and negative — response.

The publisher of the text will want an appropriate copyright notice in any concert programs, printed music or recordings. Although they’ll sometimes insist upon a portion of the writer’s share of royalties (i.e., income), you should avoid giving them a share of the copyright (i.e., ownership) in your work. Flat-fee buyouts in the range of $500-$1,500 are common, especially for choral works written for the educational market, although these fees can range from nominal (e.g., $50) to enormous ($5,000).

The process is very similar if you want to use a quotation of a copyrighted musical work. Start by contacting the business affairs department of the music publisher for the work. If you don’t know who the publisher is, you can search on the website of the appropriate performing right organization. ASCAP, BMI and SESAC all have searchable online databases for their repertoire.

An earlier version of this article was published on BMI’s Songwriter 101 web site on October 8, 2010.

So Nu, Music?

As many of my friends and colleagues know, I’ve been working for nearly two years on launching a comprehensive new promotion, publishing and licensing service for classical and jazz composers. Needing a break from dealing with the travails of software application development and the cast of characters involved, I decided last night to actually go out and listen to some of the music that inspired me to pursue what is a seemingly Quixotic quest to do something radical to help composers of new music.

As a preface, I was frequently asked back when I was running the New York office of a prominent classical music publishing company why I was signing jazz composers like Paquito D’Rivera and Andrew Hill, among others.  Among the responses I would give were things like they’re both taught in colleges and conservatories, are performed in concert halls and require a similar sophistication and study of compositional and performance skills.  And they have similar demographics in the marketplace.

The music I heard last night made me once again consider an even more radical reason: it’s all new music. And while there is plenty of contemporary music in both the classical (and I use the term to include “concert”, “serious” and “new music”) and jazz camps that are more firmly rooted in their respective traditions, I suspect that listeners who were unfamiliar with the artists and how they’ve been “branded” would be hard-pressed to classify the musical offerings I heard yesterday as definitely either classical or jazz.

First, I attended a concert of two short sets:  one by Missy Mazzoli and her group, Victoire and the other by the Vijay Iyer trio. With respect to Mr. Iyer’s music, he’s clearly been labeled as a jazz composer –  he’s won a fistful of Downbeat awards this year –  and the piano trio is one of the most traditional of jazz ensembles.  But the music he played had little if any of the trappings of traditional jazz. The drummer didn’t groove on a traditional swing beat. In fact, for long stretches he didn’t keep time at all.  And to my ears, the musical structures and harmonies Vijay composed seemed closer to the classical tradition than to that of jazz.

As for Victoire’s performance, the ensemble of two voices, clarinet, keyboards, violin, double bass, two female singers and electronics wouldn’t immediately strike someone as classical music if they were merely accustomed to hearing symphonies and string quartets.  The works Victoire performed certainly would fit nicely on a program with those of Mr. Iyer and the other “jazz” performer I heard last night. And yet, Ms. Mazzoli is signed to G. Schirmer, another prominent classical publishing company and she does write works for more traditional musical groupings. Last night, however, she presented her works as performed by her own ensemble, reminiscent of a more recent “classical” tradition epitomized by Reich and Glass, composers now regarded as classical – but not back when they first toured with their respective groups.

Then there’s last night’s the third group: Scott Robinson’s Doctette, which performed last night at the Jazz Standard.  Mr. Robinson, an established jazz saxophonist and composer,  presented a set of his compositions inspired by the Doc Savage pulp magazines of the 1930s and 1940s. And while an ensemble of piano, bass, drums and percussion, with Mr. Robinson on various winds, is a traditional jazz format, the inclusion of theremin and the rare, monolithic, awe-inspiring contrabass sax is not.  And like Mr. Iyer’s music earlier in the evening, there wasn’t much in the way of traditional swing beats and the music sounded far more like the music I hear at Zankel Hall than at a jazz club like the Jazz Standard.  And yet none of the music I heard last night sounded anything like the “third-stream” experiments of the post-war period, either.

The other day, my good friend, Frank J. Oteri, writing in NewMusicBox about accordionist, Guy Klucevsek’s album, Polka from the Fringe, concluded, “the next time someone comes up to you claiming to be able to define new music, tell him or her to listen to these recordings.”  I offer a corollary: the next time someone tries to draw lines separating what’s classical and what’s jazz these days,  tell him or her to listen to Mazzoli, Iyer, Robinson and a whole host of genre-bending new music composer/performers.