The Composer’s Guide to Doing Business: Competitions Pt 2: Rights Grabs

[This is part two of a multi-part miniseries of posts on composition competitions. Competitions are typically a significant part of a composer’s coming-of-age process, and young composers in particular are frequently (in some cases constantly) bombarded with exhortations to apply to everything possible from teachers, administrators, and older composers. In these posts, I’m taking a look at various issues with competitions that many composers have come to see as problems, and which have caused many to stop applying altogether.]

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The subject of competition rights grabs is something I’ve blogged about before on the NewMusicShelf, and I suggest you click on over to read that post, and if you haven’t done so already to read the Composer’s Guide miniseries on copyright.

The rights enumerated in copyright law are the key to an artist’s financial well-being. The only way we can generate any sort of income with our art is to retain as many of our rights as possible, which means that more rights we give away, the less income we can secure from our works.

And yet.

A worrisome number of competitions contain language in their rules and submission guidelines that grants the organization certain key rights to a composer’s intellectual property. Rights that the organization really has no valid reason to have or need. Rights whose exercise could cause severe damage to a composer’s financial well-being should the organization decide to make use of them.

Some examples I’ve seen are:

Right to make a commercial recording
Yeah, ok, I get that the organization or ensemble may be so excited about the winning entry/entries that they want to run straight into the studio to get the performances on disc.

But.

Anything regarding a recording – especially one that will be made commercially available on any level – should be reserved for a separate agreement between the organization and the specific composers involved. It shouldn’t be in a blanket edict dictated to all entrants to the competition at the time of application.

Most of the competitions that use this language also require that the composer waive certain fees and royalties that are normally payable to a composer. Meaning: the organization is claiming the right (by claiming yours) to make money off of a recording of your work without the attendant responsibility of having to pay you for it.

I’ve said this in other posts on this blog, but I’ll say it again: money always flows to the composer.

If someone uses your work, you need to be paid for it. Period. Especially if they stand to make money off of the performance/recording/synchronization. There is no use of your work that should not result in your remuneration. (Except certain educational uses. And music used in religious services – though I strongly disagree with this.)

The mechanical license for a small commercial release (and any sale of a recording constitutes a commercial release – it’s not just recordings sold by big record labels) shouldn’t be waived, especially since it’s not a large fee! When I questioned this point with a competition last year, I was given the excuse that the fee would be small anyway, so I shouldn’t mind waiving it. Sorry, no. If the fee is small anyway, the organization shouldn’t mind paying it.

Remember: the ensemble isn’t doing you a favor by recording your music. If they want to sell it, then they’re using your music to generate a profit for themselves. No one is doing anyone any favors, except the one where you waive your right to fees that are legally payable to you.

I get worked up over this because I see it quite a lot when I look at competition guidelines.

Maybe the organizations who use the language saw it in another competition’s guidelines, and decided to just adopt it into their own because they’re not really sure what sorts of things should go into competition guidelines.

Or maybe there’s a lawyer or businessperson involved in some of these organizations who knows just enough about IP law and the way that competitions are currently being run to think of putting in this language, but not enough to actually understand the potential and actual ramifications of the inclusion.

Namely: that there are significant monetary consequences to the commercial release of a recording of a piece of music. The composer’s only control over recordings of her works extends only to the first commercial release. This is the only time that she can negotiate the mechanical license and royalty rate, or veto the actual recording of the piece if it’s not of sufficiently high quality or not being recorded by performers she wants making this particular recording. All subsequent recordings of that work by other ensembles will only earn her a compulsory license fee, which pays 9.1 cents ($0.091) per copy sold for works under 5 minutes, and 1.75 cents ($0.0175) per minute of recorded music for works over 5 minutes. Beyond that, she will be owed nothing. So, first recordings are important. And you can be sure that a piece that already has a commercial recording probably won’t be eligible for 99% of these competitions, so the vast majority of submissions are unrecorded, meaning that these composers stand to lose something.

While these releases may end up flying under the radar if the distribution is purely physical, entirely offline, and on a small scale, under other, perfectly reasonable conditions they could present a major problem for the composer. If the competition organization is sufficiently tech savvy to get the recording on iTunes – which isn’t hard at all – anybody with an interest in recording the piece can find it if they do even marginal due diligence (and any ensemble working with a real label will get that due diligence from the label’s R&D team), and know that the composer only needs to be paid the compulsory license fee and no more. No permission need even be asked or notification given to make the recording! So whereas our hypothetical composer could have negotiated a reasonable license fee and royalty rate, this competition just screwed her out of hundreds or possibly thousands of dollars in royalties. And if she waived her fees and royalties because of the competition guidelines…..

The only way that a composer could make a decent royalty rate on non-first recordings is if a) the label decides to be uncharacteristically and magically generous, or b) the composer owns the rights to the recording herself, and will consequently earn the full profit from all sales. The latter meaning, of course, that she has either purchased the master, or paid for the entire recording process herself.

I should note that this little rant doesn’t extend to recordings made for archival purposes. Sometimes an organization just wants to have a recording on file of their performances for the sake of posterity or study or promotion. These uses are non-commercial, and have no significant impact on royalty rates or fees. For archival recordings, no mechanical license fee or royalty is due the composer, though I think that the composer should also get a copy of the recording for their own non-commercial use.

(The same competition that told me that I shouldn’t mind waiving the mechanical license fee, also tried to sell me the line that their recording would be archival, which to them meant that it would probably only sell one or two hundred copies. Sorry – not archival. That’s called a “limited commercial release.” And they’d still be making money off of composers who weren’t being compensated.)

Derivative works
One “competition” that I’ve specifically called out in the past really is a scam, and not just because it charges a hefty application fee and awards only a “Certificate of Excellence in Composition” to its winners. It makes a couple of rights grabs that a few other – infinitely more legitimate – competitions also make: most significantly, to make derivative works based on your submission. Seriously.

There is absolutely no reason why a competition should ever in a million years need to make an arrangement of your work or adapt it for any non-original purposes.

When I see this one, which is admittedly pretty rare, but still out there, the only thing I can think (besides, “Hulk Smash!”) is that someone has decided that they want to make some money by stealing rights to pieces, making arrangements, and selling them as their own work.

Performance Rights
Sometimes the competition claims the right to perform the work – almost invariably accompanied with the language “in perpetuity” (a phrase that makes my blood boil on good days) – royalty-free.

Sorry. No.

As a music presenter, the organization should have blanket licenses already in place with the major PROs, so your royalty will cost absolutely nothing more to the organization than what they’ve already paid. If they don’t have a blanket license in place, that’s a big problem, because it means that the organization isn’t paying royalties to anybody for any of the music that they perform! As someone who has paid these license fees before, I can say with absolute certainty that they aren’t expensive in the least, and are easy to obtain (though the PRO websites seem to have gotten more difficult to navigate lately – ya hear me, guys?)

Those unlicensed performances are – sing it with me, now – not. legal.

There’s no reason to ever waive your right to a performance royalty except maybe in the instance of a performance for charity – and then you should still be asked, and not dictated to.

You agree
All of these rights grabs are predicated on the idea that by submitting materials, you agree to all of the terms and conditions (the guidelines and eligibility rules) of the competition. There’s no need to sign here, here, and here, and initial here because you’ve probably filled out an application form, and you’ve definitely sent in scores for consideration; and as these things are worded, that (especially if you’ve signed an application form with attached guidelines) indicates that you have read and agree to all the terms.

Necessary Rights
There are, of course, rights that competitions need to exercise in order to operate: the right to use your name and likeness in press materials announcing that you’ve won, or in promotional materials for the organization or competition. Possibly the right to make photocopies of your materials for purposes of adjudications (which copies will be promptly destroyed). I’m not entirely convinced that a choral competition should have the right to make sufficient copies of the winning score(s) for the choir for performance, but I might be willing to let it slide. Still, I don’t think it would kill anybody to come up with a copying license fee for this latter instance.

Financial Liability
What I think all of these rights grabs really boil down to is not ignorance on the part of the organizers, or any active desire to harm composers or their financial well-being. Instead, it’s purely an act of looking out for the fiscal interests of the organizations themselves. Money is scarce everywhere, especially over the past few years. And ESPECIALLY in the arts. So if an organization can find ways to generate income (creating a recording, selling concert tickets) while also limiting their financial liabilities (not paying royalties, forcing composers to waive their fees, asking composers to submit scores rather than having to find and pay for them…), then they’re going to try them. It may not be sinister, it may not be intentionally harmful. But it is wrong. Administrators may be trying to avoid yet another expense, but it’s at the greater expense of the composers’ careers.

Which leads to issues of…

Professionalism
Because most of the composers who apply to the bulk of the competitions out there are young/emerging and generally professionally inexperienced, they’re not really equipped to know that there are potential and actual consequences to these rights grabs. And unfortunately, the fact that the rights grabs are becoming more and more common is training these composers to value their work less and less. If the organizations who set themselves up to be supportive of new music and of young/emerging composers will nickel and dime the artists, and insist that they waive their fees and royalties, those composers will be trained to put a low value on their art (and haven’t we already devalued it enough?). This sort of financial hamstringing is absolutely not in the interests of composers or of new music.

Rather than than using rights grabs to stiff young composers out of income that they’re entitled to, competitions should be helping to create professional expectations and standards of behavior. Organizations should be teaching young/emerging composers that they are entitled to be paid for their work, and affirming that composer’s rights are important, not manipulating them into giving up rights and waiving fees because the organization has so generously decided to perform a piece or award some paltry prize money.

This is not just a financial issue. It’s a moral one.

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I’m going to be spending a few weeks on the topic of competitions and various elements that I think need to be addressed. These posts will be aimed at both composers, so that they can be aware of various issues before entering any competition or submitting to a call for scores, and competition administrators, so that they can have a composer’s eye view of the issues involved with competitions and awards. The end of this mini-series will culminate in my (ever-humble) opinion on how I think organizations should structure programs like these to be as supportive as possible of composers and new music without putting a greater burden on those organizations and ensembles.

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Thanks!





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