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

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. 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.

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.

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 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.

Higher Costs for Creators to Protect Their Rights

It seems like individual creators just can’t catch a break. As of yesterday, it became much more expensive for the majority of creative artists, particularly songwriters, recording artists and multi-media artists, to protect their works by registering them with the U.S. Copyright Office. While one does not need to register to obtain copyright protection, there are a couple of key incentives in the copyright law that make registration strongly advisable. First, registration is a prerequisite to filing a lawsuit for copyright infringement. Second, you can only obtain statutory damages and attorney’s fees if the work was registered prior to the infringement taking place. How do you know when you’ll be infringed? You don’t, hence the incentive to register as copyright lawsuits are very expensive and statutory damages are often preferable to actual damages which may be either too modest to make a lawsuit practical or too difficult to measure.

The Copyright Office published a new schedule of fees that went into effect as of May 1, 2014. A basic online registration still costs $35.00. So far, so good, right? Unfortunately, that $35.00 fee applies only to: “single author, same claimant, one work, not for hire.” What if you’re a songwriter who wants to register a whole bunch of works? Or what if you’re a lyricist who collaborates with a composer? Or what if you create mixed media works or remix works? You used to be able to register most of these for that same $35.00 fee.  Now, unless you are the sole creator and copyright owner of a single work that online registration is now going to run you $55.00. That’s a pretty big jump.

The Copyright Office certainly has the right to raise fees from time to time and these increases are supposedly to account for the cost of providing the various services, such as registrations, recording transfers, searches, etc., that the office provides.  Fair enough, but I wonder if the Copyright Office simply applied these increases across the board. Or, did they consider keeping fees for registrations lower to help individuals and small businesses while more substantially raising other costs that typically apply only to litigants and big businesses, such as those listed under “Optional Services Related to Registration”? Just a thought…

Anyway, it’s now much more costly for creators to protect their rights.

 

 

A Small Claims Court for Copyright Claims?

Although the shutdown of the federal government has justifiably grabbed most of the headlines, and despite this week [October 3] being labeled “Hell Week” for classical music, something potentially good for composers, self-produced recording artists, visual artists and other artistic creators was announced: On September 30, just before the government shut-down, the Copyright Office released a 155-page report – plus appendices – outlining recommendations for the equivalent of a voluntary small claims court for copyright claims, primarily infringement.

The full report is available here. The majority of the report deals with legal niceties such as constitutional authority for a copyright small claims tribunal, subject matter and personal jurisdiction issues, analogues to other specialized tribunals and the scope of clams this copyright tribunal would handle.

However, the Copyright Office summarized its recommendations as follows:

  • Congress should create a centralized tribunal within the Copyright Office, which would administer proceedings through online and teleconferencing facilities without the requirement of personal appearances. The tribunal would be staffed by three adjudicators, two of whom would have significant experience in copyright law – together having represented or presided over the interests of both owners and users of copyrighted works – with the third having a background in alternative dispute resolution.
  • The tribunal would be a voluntary alternative to federal court. Its focus would be on small infringement cases valued at no more than $30,000 in damages. Copyright owners would be required to have registered their works or filed an application before bringing an action. They would be eligible to recover either actual or statutory damages up to the $30,000 cap, but statutory damages would be limited to $15,000 per work (or $7,500 for a work not registered by the normally applicable deadline for statutory damages).
  • Claimants who initiated a proceeding would provide notice of the claim to responding parties, who would need to agree to the process, either through an opt-out mechanism or by affirmative written consent. Respondents would be permitted to assert all relevant defenses, including fair use, as well as limited counterclaims arising from the infringing conduct at issue. Certain DMCA-related matters relating to takedown notices, including claims of misrepresentation, could also be considered, and parties threatened with an infringement action could seek a declaration of noninfringement.
  • Parties would provide written submissions and hearings would be conducted through telecommunications facilities. Proceedings would be streamlined, with limited discovery and no formal motion practice. A responding party’s agreement to cease infringing activity could be considered by the tribunal and reflected in its determination. The tribunal would retain the discretion to dismiss without prejudice any claim that it did not believe could fairly be adjudicated through the small claims process.
  • Determinations of the small claims tribunal would be binding only with respect to the parties and claims at issue and would have no precedential effect. They would be subject to limited administrative review for error and could be challenged in federal district court for fraud, misconduct, or other improprieties. Final determinations could be filed in federal court, if necessary, to ensure their enforceability.

Addressing the extremely burdensome time and expense for creators to pursue a copyright claim is a good thing and this report is definitely a step in the right direction. For example, the report states that for a copyright case that’s worth less than $1 million, it typically costs over $350,000 to litigate it and around $200,000 of that is spent on “discovery”, i.e., document requests, depositions and interrogatories. Most artists, including composers, don’t have the resources to pursue a copyright infringement claim – or defend one — unless they qualify for representation by VLA or a similar organization.

Wearing my various hats as creator, copyright lawyer and administrator of other’s creative works, I do have some concerns about the report’s recommendations. For example, centralizing the small claims tribunal within the copyright office, even with most matters handled by written submissions and video-conferencing seems impractical. While there is reluctance among the federal judiciary (and copyright claims are exclusive to the federal courts) to create specialized tribunals, it would make more sense, both for the convenience of the parties and to distribute the administrative burden, to have these streamlined procedures available in each federal district.

Alternatively, one might consider the approach for the “circuit rate court proceeding” under Section 513 of the Copyright Act to have the small claims tribunal available in the district court that is the “seat” of each of the 12 Circuit Courts of Appeals (e.g., New York, Chicago, Denver, San Francisco). This did not seem to be addressed in the Copyright Office report.

Another concern is that with a voluntary proceeding, a well-funded party, such as a major corporation, may simply opt out of these proceedings and force a plaintiff to spend resources he or she doesn’t have. On the other hand, there should also be provisions to ensure that frivolous claims are swiftly dismissed and that creators don’t use these procedures to attempt to try to get a windfall in unwarranted copyright damages where the “notice and takedown” procedures under the DMCA would be sufficient.

The recommendation for some form of small claims proceeding is a welcome one, albeit one that should be subject to further refinements. However, given the current Congressional climate, it’s also unlikely to be acted upon anytime soon.

This article was originally published on the ScoreStreet Web Site on October 3, 2013.