Tag Archive for: assignment of copyright

Estate Planning for Composers: 10 Things to Do Before You Die

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Making preparations for your eventual demise isn’t fun. But there are far more important things you can do for your musical legacy than writing a requiem, according to estate planning lawyer located in Highland, IN. Proper planning for your death or incapacity is important even if you don’t have a spouse or kids and involves more than just making a will. Besides, what better time than in the dead of winter to deal with these issues?

So here’s a bucket list of ten things composers and other musicians should do before they die. You don’t have to do everything all at once and some steps are more important than others. But get started! Spoiler alert: it all boils down to organizing your musical life, deciding who you want to be in charge of it once you’re gone, and then working with professionals to ensure a smooth hand-off. Here are the benefits of having a trust and knowing how you can protect your assets.

1. Organize your files. All contracts, royalty statements and other important documents should be kept together and clearly organized. Get a filing cabinet and a bunch of manila folders. You should know that planning for the legal aspects of your life is a very crucial thing to do.

Create clearly labeled physical files for:

– PRO (ASCAP, BMI or SESAC) membership agreements both as a writer and, if applicable, as a publisher

– your publishing company documents (e.g., d/b/a certificate, operating agreement, bylaws)

– songwriter, composer or other music publishing agreements for any works represented by other publishers

– copyright registration certificates

– agreements with collaborators and/or owners of copyrighted text, including royalty splits/payment information

– recording contracts if you’re a recording artist or have self-produced any recordings

– mechanical licenses from record labels or Harry Fox for any recordings of your works

– all commissioning agreements, particularly if there are any unexpired exclusivities

– film, TV, advertising, videogame, corporate and other scoring agreements

– copies of recent royalty statements (e.g., past 3-5 years) from performing rights organizations (PROs), music publishers,     record labels, Harry Fox (HFA) and other entities that are supposed to pay you for the use of your music

Organize your digital files, too:

– clearly label all your Sibelius, Finale, PDFs, audio and other digital files in specific folders

– back them up onto a thumb drive and/or cloud storage

– organize, label and back-up PDFs of physical documents listed above

2. Create an easily accessible master list for the passwords to:

– your computer(s)

– your PRO and SoundExchange account(s)

– your web site and web hosting account(s)

– your email and social media account(s)

– any online services where you’ve posted your music

– any password service for any of the above

3. Make sure all your works have been registered with ASCAP, BMI or SESAC. You need to do this regularly in order to get paid public performance royalties. Also, if you are self-published, it’s the easiest way for potential licensees to find your music other than Googling you to find your web site. And periodically check to make sure works represented by other publishers are properly registered, too. (If you’re a recording artist or have self-produced recordings you should also sign up with SoundExchange and register your works there as well).

4. Assign the copyrights in your works to your publishing company if it’s a corporate entity. If you don’t have a publishing company or it’s merely a sole proprietorship (e.g., Jane Doe d/b/a Jane Doe Music) this is not an issue – there’s no need to assign something to yourself. However, if your publishing company is some other form of business entity (e.g., S Corp., LLC, LLP) you probably should do this. Since PROs only track payees, not owners, merely registering your works in the name of your publishing company with your PRO may not be sufficient when it comes to any sale or transfer of your publishing company. A one-page assignment of copyright with a schedule of works may be all that’s needed.

5. Register your works with the Copyright Office. While registration is permissive, rather than mandatory, there are many benefits to registration, including proof of authorship, the existence of deposit copies of your work and availability of statutory damages if your work’s infringed. You can do a group registration under certain conditions and you can do it online at www.copyright.gov.

6. Make a list of works represented by other publishers. It can be a simple Excel spreadsheet with columns for the title of the work, instrumentation, the publisher’s name and contact information.

7. Let someone know where all the above information is kept. Any master list and instructions should be in a separate document kept with your will and other estate planning documents and insurance policies.

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While you’re organizing your files and making sure your works registrations are up to date, here are some things to think about regarding estate planning for your music and other creative properties:

8. First, find a local trusts and estates (T&E) attorney. While the Copyright Act is federal law, T&E law is largely governed by state laws, which can vary greatly. Moreover, you want to meet with a local T&E lawyer about drafting important documents such as your will, living will, health care proxy and any trusts for the benefit of loved ones. Your T&E attorney, along with law firm know for civil litigation located in Kingston, will ask you all the right questions about how you want to deal with your estate, including tax issues, and will customize an estate plan for you in accordance with your state’s and applicable federal laws.

9. But, also consider working with an entertainment lawyer, too. While there are T&E lawyers who are well-versed in copyright and the music business, most are not, especially if you live in an area that’s not a big arts hub. So, it may be helpful to have an entertainment lawyer work with your T&E attorney. The entertainment lawyer need not be local, but should be someone with copyright and music business expertise, including things that are specific to “new music.” The pitfalls avoided will be well worth the modest additional cost.

An experienced music lawyer can be helpful because this attorney can:

– assist your T&E lawyer in ensuring that the applicable provisions in any will, trust or assignment documents are appropriately drafted. This way, copyrights, royalties, scores and other aspects of your creative life will not merely be vaguely lumped together with other personal property or financial assets – especially if you want to divide up ownership of individual works or royalty streams or you want specific instructions as to the disposition of individual scores, instruments and mementos.

– ensure that appropriate documentation is supplied to PROs, publishers, labels and other entities so that your beneficiaries will have their rights promptly recognized and royalties will continue to be paid, rather than placed on hold.

– determine whether royalties are being properly paid and whether certain agreements may be terminated either through contractual provisions or by the termination provisions of the Copyright Act.

– perform a valuation for your works or assist an estate appraiser so that any deals your estate makes with respect to the sale or administration of your catalog will be a fair one for your loved ones.

– negotiate an agreement for the sale and/or administration of your music as part of your estate plan that would only take effect upon your death so as to avoid your executor or your loved ones having to deal with arcane areas where they lack expertise. Any agreement would have to address financial terms, such as acquisition fees, advances, royalty splits and other contingencies, such as the ability of an executor to back out of a deal and/or make alternative arrangements if the publisher/administrator ceases to exist or is otherwise unable to comply with the terms of the agreement.

10. Consider having a separate music or arts executor. The person you choose as the executor of your overall estate should be the person you trust the most to deal with your home, your finances, the care of your loved ones and most of your other physical possessions. However, that person may not be the best one to deal with your music and any other literary or creative properties (e.g., did she really mean to put that C# in the horn part?). So, just as you may consider consulting an entertainment lawyer as part of your estate planning, you may want to consider naming a friend or colleague who is familiar with your music to serve as a special music or arts executor to deal with your compositions and other creative works. You should discuss your choice of executor(s) with the individuals you choose and should have back-ups. Executors can decline to serve – or may even predecease you.

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As with other aspects of your estate planning, paying attention to issues relating to your music now, before you either die or are incapacitated, will not only give you peace of mind but will spare your loved ones unnecessary cost and anxiety. It’s the best way to protect your creative legacy.

Five Things Composers Should Ask About Working With a Publisher

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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.

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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.