Author: SCI Members Mailing List
Subject: Contract from Germany
The contract appears to me to be a standard publishing contract, although perhaps ineptly translated from the German into English. The percentage paid per copy sold is blank; I would assume that either this is a mistake or a deal point. It also states that the formulas for distribution of royalties will be determined by copyright collection agencies. It is here that this contract differs significantly from an American model. We have no such societies, relying instead upon performance rights societies (which will divide income earned on behalf of a specific copyright equally between publisher and writer), a patchwork of semi-governmental (Library of Congress) and private (Harry Fox Agency) organizations that issue and collect certain licenses on behalf of copyright owners, and a plethora of potential copyright users who generally deal directly with the copyright owner, negotiating and paying fees and/or royalties with and to said owner. Publishing contracts require the creator to assign his or her rights to the publisher so that the publisher has the right, and the ability, to deal in exclusive and/ or non-exclusive uses of the copyright. In exchange, the creator is supposed to be given a "continued royalty interest", usually 50% of all income for popular music, and for "art music" often 50% of all income except for sheet music sales, which is often considerably less. In the US this would exclude performance income, as those monies are collected by the aforementioned Performing Rights Societies and pre-divided between the parties. This contract, in order to have meaning in the US, needs to define the income split, exclusive of performance royalties and sheet music royalties. It may be good to remember that, in Europe, certain rights are considered inalienable to the creator, the so-called moral and ethical rights, inherent in the international copyright treaty to which our country is a signatory but which, no surprise here, our country does not comply with, due to the pressure of corporate lobbyists on our legislature. So the German publisher, for example, would not ordinarily be able to obligate the creator to allow use of his or her music in a manner objectionable to said creator. However, this contract seems to require the creator to agree in advance to any such uses. So, there are a few problems inherent in this contract; I have no way of knowing if any or all of them are the result of a poor translation. A better understanding of copyrights in general, and publishing standards and practices in specific, would certainly aid one in determining these flaws and bringing them to the publisher's attention. But to dismiss and condemn the entire contract demonstrates a lack of experience and understanding of the place of publishing within our field, and a lack or awareness of market realities as well. Every time some member brings up a recording contract, a publishing contract, or any other legal instrument pertaining to some aspect of our business, it seems a number from our membership jump into the fray with opinions, observations, and anecdotes. But I think that the SCI ListServ is likely not the best place to obtain guidance or assistance on matters such as these, of which the vast majority of our membership has no real and valid experience or knowledge. Obtain your advice from experienced professionals if you are serious about what you are doing. Try checking with your performing rights society. Compare your contract with one or all of those compiled and explained in a work such as This Business of Music. If it's really important, and thus worth the investment, consult with a music attorney. Just make sure that the attorney you engage is either board-certified (in those states whose Bars offer such certification) or whose practice is primarily based upon legal work in music (not IP) business and law.
Arthur Gottschalk Professor, Rice University The Shepherd School of Music Houston, TX 77005 sent from my iPhone
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Subject: Contract from Germany
The contract appears to me to be a standard publishing contract, although perhaps ineptly translated from the German into English. The percentage paid per copy sold is blank; I would assume that either this is a mistake or a deal point. It also states that the formulas for distribution of royalties will be determined by copyright collection agencies. It is here that this contract differs significantly from an American model. We have no such societies, relying instead upon performance rights societies (which will divide income earned on behalf of a specific copyright equally between publisher and writer), a patchwork of semi-governmental (Library of Congress) and private (Harry Fox Agency) organizations that issue and collect certain licenses on behalf of copyright owners, and a plethora of potential copyright users who generally deal directly with the copyright owner, negotiating and paying fees and/or royalties with and to said owner. Publishing contracts require the creator to assign his or her rights to the publisher so that the publisher has the right, and the ability, to deal in exclusive and/ or non-exclusive uses of the copyright. In exchange, the creator is supposed to be given a "continued royalty interest", usually 50% of all income for popular music, and for "art music" often 50% of all income except for sheet music sales, which is often considerably less. In the US this would exclude performance income, as those monies are collected by the aforementioned Performing Rights Societies and pre-divided between the parties. This contract, in order to have meaning in the US, needs to define the income split, exclusive of performance royalties and sheet music royalties. It may be good to remember that, in Europe, certain rights are considered inalienable to the creator, the so-called moral and ethical rights, inherent in the international copyright treaty to which our country is a signatory but which, no surprise here, our country does not comply with, due to the pressure of corporate lobbyists on our legislature. So the German publisher, for example, would not ordinarily be able to obligate the creator to allow use of his or her music in a manner objectionable to said creator. However, this contract seems to require the creator to agree in advance to any such uses. So, there are a few problems inherent in this contract; I have no way of knowing if any or all of them are the result of a poor translation. A better understanding of copyrights in general, and publishing standards and practices in specific, would certainly aid one in determining these flaws and bringing them to the publisher's attention. But to dismiss and condemn the entire contract demonstrates a lack of experience and understanding of the place of publishing within our field, and a lack or awareness of market realities as well. Every time some member brings up a recording contract, a publishing contract, or any other legal instrument pertaining to some aspect of our business, it seems a number from our membership jump into the fray with opinions, observations, and anecdotes. But I think that the SCI ListServ is likely not the best place to obtain guidance or assistance on matters such as these, of which the vast majority of our membership has no real and valid experience or knowledge. Obtain your advice from experienced professionals if you are serious about what you are doing. Try checking with your performing rights society. Compare your contract with one or all of those compiled and explained in a work such as This Business of Music. If it's really important, and thus worth the investment, consult with a music attorney. Just make sure that the attorney you engage is either board-certified (in those states whose Bars offer such certification) or whose practice is primarily based upon legal work in music (not IP) business and law.
Arthur Gottschalk Professor, Rice University The Shepherd School of Music Houston, TX 77005 sent from my iPhone
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