Co-opetition

Co-opetition.

I came across this term recently, and it’s a concept that I really like. A portmanteau of cooperation and competition, it rather perfectly sums up my philosophy on working with other composers: yes, we’re in competition to a certain degree (there are only so many pieces that can be performed on this or that concert, only so many projects get funded through NMUSA, etc), but the nature of our field is such that by working together and pooling our resources, we can create more opportunities for all of us.

It’s for this reason that I love the idea of composer collectives. Ideally, everyone in the collective has something to offer to the group – connections, a special skill set, etc – and each member is responsible to some degree for promoting the group’s interests. By pooling their intellectual, artistic, and financial resources, the collective can put on concerts featuring the music of its members, or they can use those resources to make commercial-quality recordings of their works, amongst other possibilities. An individual might have a difficult time organizing such endeavors on their own – and may find it impossible to come up with the funds -, but a collective can spread the responsibilities and financial burden across its entire membership.

Similarly, I’ve been thinking lately about the idea of composer-run small presses.

A collective of composers could easily found a small publishing company for its members. Each composer could be held responsible for different tasks within the company – tracking sales, marketing, bookkeeping, outreach to performers, proofreading and editing the scores, etc. Whereas a single self-published composer would be responsible for all of these things, and may have a difficult time keeping up, this scenario would allow each member to be more focused on one or two tasks to which they’re well-suited, which ultimately leaves more time for composing.

Off the top of my head, I can see this working in a handful of ways:

1) The composers could pool all of their works in the publishing company, and allow the company to create (essentially) imprints. The imprints could be by composer, where each member has a brand that is a part of the whole, but slightly distinct; or it could be by instrumentation, where vocal music, choral music, chamber music, and large ensemble music are separated out, which could make marketing much easier, since each imprint would be focused on a particular segment of the performing world.

Mock-up for similarly branded imprints in a publisher’s catalog

2) The composers could pool only particular types of their works in the publishing company, retaining publication and distribution rights to the remainder of their catalogs. This allows the publishing company to narrow its focus to a particular market, and would probably be most ideally-suited to choral or band works.

Although I don’t know the inner workings of the group, the Independent Music Publishers Cooperative (imp.coop) seems to operate in a manner similar to the latter form. (Although I think that each composer publishes their own works, and the group acts as more of an umbrella for the sake of publicity and resource-sharing.) The composers in the group all write a significant amount of music for choirs, and they’ve found a way to increase the visibility of their individual members by pooling resources. The group is a fixture at choral conferences – they always have a booth with racks of music, which is much more affordable to manage when everyone pitches in. I saw them in action in 2013 at the national ACDA conference, in Dallas. Everyone took shifts manning the table to handle sales, and at least one of them would be hanging out by the racks, ready to answer questions and offer suggestions based on a director’s needs. Invariably, the composer-on-dutyr would reach for a piece by one of the other members of the group, saying, “You’ll love this one,” or “I think this would be perfect for your group.” The composers look out for one another. As a consequence, they strengthen their bonds to one another, and they add to the stability of their company, which benefits everyone, financially, personally, and artistically.

A small press, of course, would require that the company license the works from the composers, as well as set up royalty rates. While I wouldn’t recommend that the company own the rights to the works that it publishes (as traditional publishers do), it should probably have an exclusive license to publish them for a finite period of time. (Limiting the length of time that the company has exclusive rights allows the composers and the company to re-evaluate royalty rates on a regular basis, as well as whether or not the composer wants to continue to participate in the company and/or collective, amongst other considerations.) Granting the company exclusive rights creates an incentive for the composer to promote the company/collective. A percentage of the profits would stay within the company, and what the individuals “lose” by not receiving the full profit from their score sales, they gain in the ability to present concerts or produce recordings or go to conferences with the collective, which they otherwise might have difficulty doing on their own.

However, co-opetition doesn’t require any formal agreements or formation of a permanent or semi-permanent group to be useful.

Two of my friends, Clint Borzoni and Philip Wharton, recently paired up to put on a concert of their vocal music. Together, they hired musicians, booked a recording engineer, rented a performance space, and promoted the concert. If each had put on a concert of his own music individually, the individual costs would have been much higher, and the risk of not making back the investment would have been a much more significant consideration. But by banding together, Clint and Philip were able to mitigate the risk because each brought their own set of ticket-buying audience members to help offset the costs. Their goal wasn’t to break even, but to put on a concert that they could be proud of, and to have some solid recordings of their vocal works to use. It was a great concert, and a complete success.

I recently started a new feature in my newsletter where I link to a piece by a composer I like: I spend a few sentences telling the people on my list why I like that particular piece or composer, and why I think that they’ll like it, too. The composer may write in a style similar to mine, and we may be “competing” for performances by the same performers, but it doesn’t hurt me to promote their works. Also, since I know my subscribers, I know that they appreciate learning about a new composer or a new piece. It costs me nothing but a few minutes to type up the handful of sentences and link to the audio, but it’s positive for everyone involved.

StoryBundle is a great example of co-opetition in the world of fiction. Each bundle centers around a particular genre, and every author that signs on to be a part of a bundle encourages their mailing list and followers on social media to check it out. The author hopes for sales on the bundle because each sale is earned income for them. Driving their readership to the bundle is partly an act of generosity – readers who buy a bundle get at least five books by other authors, as well, which is a huge win for readers, and it also helps the other authors -, but when all twelve writers drive their lists to the bundle, each writer is seen by the lists of the other eleven, which greatly increases their own visibility. Everyone wins.

Co-opetition is predicated on the idea that “a rising tide lifts all boats”, but with the added benefit of that tide having been generated by the collective efforts of the boats themselves.


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.

I write the Composer’s Guide here, taking time away from my composing to do so. If this post helped you in any way, be a dear and click the donate button at the bottom of this post, will you? If you can’t afford to donate, please pass this chapter along to someone who you think might get some help from it.

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Thanks!






The Composer’s Guide to Doing Business: Copyright Part 5

My apologies for my absence last week – an unexpected health issue kept me from making use of my regularly-scheduled Composer’s Guide writing time last week (I set aside every Wednesday evening from 6:00 until 1:30am to write this, though I try not to take that long!), and the rest of my time was already spoken for until today. Such is my life!

So this week I want to finish off (at least for now) our copyright discussion with one of the most controversial topics surrounding intellectual property law: the cutely-named “copyleft” movement, and its impact on how copyright law is perceived.

First, though, a brief note and a few links on copyright infringement again. One of my earlier posts on the importance of registering your works, and it was noted in the comments that wholesale theft of concert music almost never happens. However rarely it happens, though, it still does.

Take as an example the Messe de requiem by Alfred Desenclos. The Messe was composed in 1963, and published by Durand et Fils in 1967. Then in 1999, almost 30 years after the death of Desenclos, it was presented as an original work by the young composer Tristan Foison. The story is sordid and sickening. And a wonderful cautionary tale. You can read about it here and here. So who doesn’t want to register their works now?

OK. Copyleft.

The copyleft movement started in the software world: software engineers wanted certain of their programs to be freely available while still limiting certain uses of them: particularly commercial use. In other words, they wanted people to be able to use and build upon their code, but didn’t want corporations to swoop in, modify the code slightly (derivative works, anyone?), and release the minorly-edited version commercially, thereby making potentially millions of dollars on a product that they neither created nor funded the creation of. The fruits of this movement are quite robust and active still in the tech community in the form of Open Source. WordPress, OpenOffice, VideoLAN, Wikipedia, Apache, Android, Mozilla: these are all companies and products centered around the Open Source Initiative, which has its roots in copyleft. Each of them may be used and disseminated freely, and users may modify or add to them so long as they don’t offer the modified version for sale, and in most cases maintain the notice of original authorship.

Most of what we make use of on the internet is thanks to the Open Source Initiative, the GNU License, etc. This blog is powered by WordPress. Some of the cooler bits of coding on this site are my own adaptations of various codes available on sites like Dynamic Drive. If you care to, view the source of this page and see the authorship notices embedded in the site’s header material. You can bet your sweet bippy that I’m thankful for open source software.

However!

This is all tech crap I’m talking about. It’s not music.

So where does music enter into the equation?

With the advent of sampling and sound libraries, there came a wider call for freely-available sounds and sampling materials. Just as with the proliferation of powerful image editing software, there grew a need for non-copyrighted stock images. Of course, when I say a “call” or a “need”, I mean: people wanted to use things that other people made, but not pay for it.

Enough people had gotten in trouble for using copyrighted images or sounds without permission that some of them started making their own and offering them for others to use without having to pay licensing fees. Many of these are available thanks to the proliferation of the Creative Commons license.

I get a lot of questions about Creative Commons and how it compares to copyright. (There’s nothing to actually compare, but we’ll get to that.) In fact, it was an email conversation I had with a fellow composer about Creative Commons that sparked me to write my first essay on copyright, which I’ve plundered liberally for this series.

This composer argued in favor of abandoning copyright in favor of licensing under Creative Commons and similar entities. (I say “entity” because Creative Commons is a non-profit corporation. FYI.) And it was this argument that made me finally realize how little composers and other artists understand about what Creative Commons actually is, and how it stands in relation to copyright.

A lot of composers and artists I talk to seem to think that Creative Commons and similar types of licenses are an alternative to copyright. That somehow CC’s ShareAlike and NoDerivs licenses replace the need for copyright protections. CC is, in fact, a type of extension of copyright that allows creators to forfeit various and sundry of their rights so that other people can have more stuff for free.

You can see that I’m not the hugest fan.

Now, I’m not completely opposed to CC licenses, but I think that composers should be careful about using these licenses with their works.

The most successful uses of CC licenses that I’ve seen used with creative works have been with photos, sound samples, and webcomics. All of these are small individual works that help to give a creator exposure and experience while also allowing them to generate revenues in other areas.

For example, photographers can make a handful of their photos available with a CC Attribution-NonCommercial license as teasers for the rest of their work – individuals and companies that want to use other of their images can pay a licensing fee, or hire them for individually-tailored shoots. Audio engineers offering sound samples can create a tiered service: the basic set of samples are made available gratis, and the “premiere” set can be purchased for a fee.

Webcomics make ingenious use of CC licenses. The individual comics themselves, because they’re posted to sites that are accessible by anyone, and because no image online is safe for long, are all licensed under CC. It’s merchandising that earns the artists their income. Jeffrey Roland’s TopatoCo is a prime example of this, as is Randall Munroe’s xkcd comic and store. Roland’s comics Wigu and Overcompensating, you’ll notice, like Munroe’s xkcd (all three of which I adore – I have a whole folder of webcomic feeds that I subscribe to in Google Reader. If you want me to dork out some time, ask me about it.) are available via CC licenses. And fans who want to have the comics collected in book form, or want T-Rex of Qwantz fame on a t-shirt , or want a print of Cornelius Snarlington, Business Deer, can shell out cash for the comic artist’s merch.

Concert music, in my opinion, differs greatly from these media. Enough so that I find CC licenses to be ill-advised for concert music composers. I’m always willing to listen to arguments to the contrary, but for the moment, I can’t see CC (say that ten times fast!) as being beneficial to our financial or artistic well-being.

Let me explain as best I can.

Our works are highly-individualized, labor-intensive, time-consuming things that have very specific types of secondary income: score sales and print/recording/broadcast/etc royalties. By appending a CC license to any of our works, we forfeit our claim to those sources of income. And unless we write many, many works with the same instrumentation, we aren’t likely to be able to use a limited number of CC-licensed works as gateway works to the rest of our catalog. Even then, a composer with a significant number of works for solo piano would be – in my opinion – ill-advised to offer one or two pieces under CC licenses hoping to attract interest in the rest of his catalog. A photographer offers a limited number of photos under CC because she knows that those few she offers for free won’t be appropriate for every project that others may need images for. An audio engineer can offer a limited number of quality samples because he knows that while some users will be content with the free product, more users will want the full complement of samples because of a) their quality, b) their range and scope, and c) again their quality.

The concert music composer who offers a CC-licensed piano piece is offering a stand-alone work that is presumably of considerably high quality. (Why offer a work that is not your best?) That work is likely to be played more often than those that require the performer to pay for the score and performance licenses. People will, of course, buy the others, but probably rather less often.

One argument I’ve heard in favor of CC licenses is that they allow others to make use of your music to create more art.

That’s nice and all, but they can still do that without you renouncing whole swaths of your rights.

Remember the last chapter from two weeks ago when I told my little story about the visual artist who used one of my scores in her work? (I completely failed to mention, by the way, that her name is Yu-Wen Wu, and he’s fabulous. You can see the body of work inspired by my score here.) Well, I gave her permission to use my score, and I didn’t ask her for a fee or anything. She’s a friend, and I was happy to have my piece repurposed for the sake of her art, so I just said, “Yes.”

You can do that, too!

I’ve also had my works remixed by pop artists, and arranged by fellow composers. All I asked of them was that I get credit as the original author. That may sound like a CC Attribution license, but the big difference is that I retain my rights to those works for all other uses.

It’s not that I’m stingy, it’s that I don’t feel the need to renounce significant portions of my rights altogether.

If you want people to remix your work, or make use of it in some new and unusual way, you don’t have to give up your rights.

A simple solution? Put something on your website saying that you welcome collaborations with other artists, and all they have to do is email you at [email protected] Done!

Problems with Perception
There are a few reasons, I think, why people tend to rebel against copyright, and lean toward the copyleft movement (which I recently heard referred to as “copywrong” – I don’t disagree with that assessment), and I think it has to do with public perception of how copyright can be…misused…? I hesitate to use the term, although I think that it is what I really mean to say.

Copyright duration tends to be a big issue for some people, and I can’t say that I completely disagree with them. I fully believe that a creator should have complete control over his/her works for the entirety of their lives, including the right to assign those rights to others (publishers, etc). I even think that the creator’s heirs should get some benefit from royalties, etc. So, I definitely advocate for a life-plus-___ duration.

I certainly don’t have an answer as to how long I think copyright should extend beyond the life of the creator. But it should for some reasonable period.

I’ve heard a lot of people lately saying that life plus 70 years is too long, and they’re not unreasonable in saying so.

And it’s the reason why life-plus-70 exists that has skewed much of the public’s perception of copyright. The Copyright Term Extension Act of 1998 was lobbied for extensively by the Walt Disney Company and the Gershwin Estate. Both had a lot on the line – the copyright terms for Mickey Mouse and Rhapsody in Blue were both nearing their end; and because the CTEA was passed, both of these continue to be significant sources of revenue for each organization, respectively. Thus, the perception of copyright as benefiting only corporations was born.

Because of this sore point, it’s easy to overlook how greatly copyright benefits individual creators. As I’ve said many times already, all opportunities we have for income generated from our works are because of copyright.

I feel really strongly about composers holding onto their rights. So I urge those of you considering using Creative Commons and similar licenses to think carefully before you do. It’s a bell that can’t be unrung – once you put a piece out there with a CC license on it, those copies can circulate and undermine any attempt you may make later on to generate income from the same work, should you reconsider your earlier decision to go the copyleft route.

Before I close the door on our copyright discussion, I would be remiss if I didn’t make note of termination rights. For those of you who have pieces that were published during or after the late 1970s, you have a unique opportunity coming up: you can reclaim rights that you’ve assigned to your publishers. This right comes available 35 years after first publication, and is available only for a window of 5 years. There are hoops that must be jumped through, and some really specific timing issues involved, but some of you may find it to your benefit (though don’t expect your publisher to be happy with you).

There’s a good blog post by an Intellectual Properties lawyer on the subject here, and the Copyright Office’s official language here.

That does it for now for copyright, so I’ll see you all back here next week for the next exciting episode chapter of The Composer’s Guide!

Share and Enjoy!

I write the Composer’s Guide here once a week, taking time away from my composing to do so. If this post helped you in any way, please leave a tip or a small donation on the way out. If you can’t afford to donate, please pass this chapter along to someone who you think might get some help from it.

And I really love to get feedback in the comments section, via email, and on Twitter – they really keep me going on this project.

Thanks!






The Composer’s Guide to Doing Business: Copyright Part 4

In this week’s installment of The Composer’s Guide, I’d like to broadly cover fair use: address some common misconceptions, look at a few examples, and offer some friendly (i.e., not-legal) advice.

Misconceptions abound about what fair use is and how it can be applied. I’m sure we’ve all heard many of the myths about what constitutes fair use of a copyrighted work: any educational use is fair use; use by non-profits is fair use; any non-commercial use is fair use. Or: so long as you only use 15 seconds or less of a recording or piece of music, it’s fair use; using 300 words or less of a text is fair use. These are vastly misleading oversimplifications of the truth.

A few quick examples can easily show the flaws in these lines of thinking: a teacher photocopying a book chapter by chapter and passing it out to her class week after week to avoid the school having to pay for 30 copies of the book is certainly not fair use. It may be educational, but the sole intent in this particular situation is to avoid paying for a copyrighted work (even if the text itself is in the public domain, chances are that the edition in question is still under copyright). A non-profit organization performing copyrighted works at its annual fundraising gala without paying the proper licensing fees: the cause may be a worthy one, but that doesn’t mean that the author should be automatically deprived of his licensing fee – especially when a simple request to the author may result in his waiving his fee or reducing it significantly.

Using a quote or audio sample of 15 seconds or less is a pretty arbitrary number to assign, especially if the sample used is the most recognizable part of the original work. Examples abound of songwriters sampling other recordings and getting the pants sued off of them because they were dumb enough to use a sample that was highly recognizable, and base their entire work around that single sample. 300 words is also ridiculous arbitrary. Consider a 100-word poem – would using all 100 words because it’s under 300 ever be considered fair use? Of course not.

These examples – and probably most misapplications of “fair use” – stem from the perception of fair use as a right. “Because of fair use, I have the right to use some portion of another creator’s copyrighted work without getting permission or compensating them in any way.”

In actuality, fair use can really only be determined on a case-by-case basis. There are a number of factors that can help to determine whether a particular use is fair use, but they don’t necessarily make any guarantees. According to the U.S. Copyright Office, those factors are:

1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
2. The nature of the copyrighted work
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
4. The effect of the use upon the potential market for, or value of, the copyrighted work

You can see where some of the myths come from – they take these factors and blow them out of proportion. The fact that your use of a work is non-commercial in nature may help decide in your favor that it is, in fact, a fair use, but won’t guarantee it. The fact that you use only a very small portion of a text in your work may help decide in your favor, but is that portion the most important part of the work you’re quoting? If the portion you quoted is the climax of the original work, and reveals “the twist” or the most important piece of information in the work, you’re likely not going to be able to call it fair use.

Hopefully you’re beginning to see that the claim of fair use is not a right, but a defense. By saying “this is fair use”, you’re putting yourself in a defensive position, admitting that you haven’t asked permission and probably don’t intend to.

This isn’t necessarily a bad thing. Obviously, arts scholarship requires that any works being studied be quoted. Commenting on or criticizing a copyrighted work is – again generally – a fair use, although there are still limits to what is acceptable, and they must be taken on a case by case basis.

Another generally accepted fair use is that of parody. If you take a copyrighted song and replace the words in such a way that you’re parodying the song itself, you’ll likely be able to claim fair use. Satire, however isn’t covered – so if you change the lyrics to lampoon a political candidate or comment on something other than the original work, you’re not protected under fair use.

You can see how muddy and confusing fair use can be. To further muddy the waters, I’m going to take an example from my own life and argue both sides of the issue.

A visual artist friend of mine used one of my scores last year to create a mixed-media work that in turn inspired a whole body of work. Now, let’s ignore the fact that she had my permission to use my score, and act for the moment as though she didn’t.

In this situation, I could argue that her use was not fair use. First, not only did she photocopy my score, she used my intellectual property as the basis for her own creative work. The mixed-media work directly used the written score. Because the work was created specifically to be shown in a gallery, the commercial nature of the work is a foregone conclusion (an artist doesn’t exhibit in a gallery unless they intend to sell – and the piece sold very quickly). The visual nature of the score was also a direct inspiration to the composition of the work. And because a cross-section of the work was used, rather than a limited portion of it, one could argue that a substantial amount was used.

On the other hand: My score is a representation of sound – the look and the engraving are intended to facilitate performance, and not to serve as a work of visual art, so the nature of my work doesn’t directly intersect with hers. The pieces of the score used – although photocopied – were small circular bits punched from the page, rendering the music virtually unrecognizable. And in addition to the confetti-like treatment, the colorization of the “dots” added another visual element of differentiation. The fact that the pieces were no bigger than hole punch confetti makes the use fairly unsubstantial. And the fact that her use of my score doesn’t affect the market value of my own work – either positively or negatively – rules out economic considerations. Also, even though my score inspired the piece – and ultimately the entire body of work, though it was only used in the one piece – any other score could easily have been used (and were in other works in the series), rendering the use of my score somewhat inconsequential.

This situation could be argued either way to varying degrees of effectiveness. Now, of course, my friend had my permission to use the score, so this is a purely academic exercise, but it shows how muddy the waters can be.

One of my favorite examples of how to approach fair use is Weird Al Yankovic. Weird Al is known for his parodies of pop songs, which falls squarely – unequivocally – under the umbrella of fair use. However, he makes a point of asking permission from each of the copyright holders before he uses their songs on his albums. He could forego getting permission, and stand back and use the argument that his songs fall under fair use, but by doing so, he leaves himself open to litigation. He may be “in the right”, but that doesn’t stop the artist from suing him, which is both time-consuming and incredibly costly. He avoids the issue entirely by asking permission in the first place. He eliminates all gray area, and saves himself the worry and potential expense and difficulty.

So that said, my friendly advice is this: when you want to use any portion of another artist’s work, ask permission first. If there’s the slightest chance that they may be unhappy with your use of their work, protect yourself and ask their permission before you even start. And if they say no? Move on. Walk away. Find something else to quote or sample or whatever. There’s nothing to stop you from doing it anyway and trying to claim fair use, but know that if you’re sued – you’re responsible. No one else.

You’re going to hear that a lot from me: You’re Responsible. You’re responsible for your own career. No one else. So when it comes to issues that affect you, you should educate yourself – know what you’re getting into, and be prepared.

You’ll likely encounter times when you run into issues of fair use – both in your own creative process, and in someone else’s – so you should know what your rights are so that you can handle the situation in a manner that is both knowledgeable and intelligent.

So I leave you this week with a few links that I think you’ll find interesting.

First, is a link from Stanford University Library’s site on Copyright & Fair Use outlining a bunch of thought-provoking examples of what is and is not fair use.

And second, two links from the blog of Weird Al Yankovic in which he discusses fair use and his policy on getting permission: The Gaga Saga and Gaga Update.

See you all next week to talk about Copyleft! In the meantime, do you have any fair use stories? I’d love to hear about them in the comments!

I write the Composer’s Guide here once a week, taking time away from my composing to do so. If this post helped you in any way, please leave a tip or a small donation on the way out. If you can’t afford to donate, please pass this chapter along to someone who you think might get some help from it.

And I really love to get feedback in the comments section, via email, and on Twitter – they really keep me going on this project.

Thanks!






The Composer’s Guide to Doing Business: Copyright Part 3

Welcome to part three of our discussion of copyright. This week I’d like to cover the topics of public domain, the doctrine of first sale, and at least get a start on fair use.

First, however, I’d like to make an addendum to last week’s chapter on the benefits of copyright registration. It was pointed out in an excellent comment that I had overlooked an important point, which I’d like to address here.

What I overlooked last week was the fact that the most common type of infringement that a concert music composer today will have to face (any file sharing aside) is an unauthorized use of a recording of the composer’s work by a dance company or non-profit organization, or an unlicensed live performance. Small-potatoes-style infringement.

The most effective way to deal with such a situation – in my opinion – is merely an email or letter from you stating the issue and offering a solution. These types of situations are born out of an appreciation for your work, and most likely an ignorance of the company’s/organization’s obligations when it comes to using copyrighted material. The commenter suggests – and I wholeheartedly agree – that you request a retroactive licensing fee.

Your letter should be polite, yet clear. Explain why you’re writing, be direct, but don’t be an ass. If you keep in mind that these people liked your music enough to use it – quite the compliment! – and that they should be treated with respect as your artistic colleagues (and just as people), you’ll do yourself a service.

Lawyering up in this instance is not only overkill, but likely to earn you a poor reputation in the community. Nobody wants to be known as That Composer Who Sued The Small Dance Company Because They Used His Music Once And Didn’t Make Any Money Anyway.

Unlicensed performances are also best handled by your Performing Rights Organization. Each PRO has a reporting system in place for performances so that there’s a greater likelihood that they will be properly licensed, even after the fact.

Always, always, always act in good faith.

Public Domain
So what happens to works when their copyright term is up? Provided that their term isn’t extended by changes in the law (another discussion for another day), they go into the public domain. The expiration of copyright is – like the existence of copyright itself – intended to “promote the Progress” of the arts. If copyright were indefinite, we wouldn’t have nearly the access to works and scientific writings and findings that we do now. Our artistic and scientific advancement would be seriously curtailed.

It’s public domain that allows us to use poems by Shakespeare or Whitman or Dickinson in our vocal and choral works without having to pay licensing fees or royalties. Because the copyright term on those works has expired, other artists are free to make use of them without compensating the artist (most likely long dead) or his/her estate.

Personally, I prefer working with living poets when I set a text, but there are projects for which I feel that it’s more appropriate – or just plain easier – to use a text in the public domain. All of my choral works use public domain texts, but the bulk of my art songs are on poems by living poets. I have both artistic and financial reasons for this dichotomy. For one in-progress, temporarily-stalled project, I’ve chosen to set 24 public domain texts and collect them into a single album of songs; by setting only public domain texts, I remove any question of what portion of royalties are due to this poet or that out of the sale of the collection. However, I find great artistic satisfaction in setting texts by poets I know, as well as bringing their poetry to a wider audience. Plus, I just really like the idea of helping my friends to earn additional royalties from their works. Big warm fuzzy.

As I mentioned last week, it’s not always easy to know when a work is in the public domain. As a rule, it’s usually – though not always – safe to assume that something written before 1923 is in the public domain. After that point, things start to get more complicated depending on where it was published, whether it was published with or without a copyright notice, and if it complies with various and sundry U.S. Copyright formalities (this last one applies mostly to older works published outside of the U.S.). Here’s an interesting resource from Cornell University’s Copyright Information Center that makes things a little clearer: http://copyright.cornell.edu/resources/publicdomain.cfm

So what happens if you think something is in the public domain, use it, then subsequently learn that it isn’t? Surprisingly, I’m actually dealing with such a situation at this very moment!

A few years ago, I wrote a choral piece believing that the text was completely in the public domain. It turns out that the version of the poem I used was an adaptation of the original by another (living) composer for one of his operas. I hadn’t registered the work either with the Copyright Office or ASCAP, so I haven’t earned any royalties on the piece, and have no registrations to amend. The change from the original is very, very minor (substituting one proper name for another). I could conceivably change the name back to the original, but I rather hate the original. Or, I could find another name to substitute. (Tried it – really hard after becoming so accustomed to it. And I chose the poem partly because I liked the name so much!)

I’ve opted for a third route: I’ve emailed the composer, asking his permission to use the text as I currently have it in the score. And when I say “I’ve emailed the composer,” I mean that I’ve only just emailed him, so I haven’t yet had the chance to receive a response. I’ll be sure to keep you all informed of the progress of the situation, hoping, of course, that this will be an excellent example of the power of writing a friendly, straightforward message that addresses the issue and offers an equitable solution.

Doctrine of First Sale
There are a number of names for the doctrine of first sale: “first sale rule”, “exhaustion rule”, “right of first sale”. So what is it, and how does it affect you?

The first sale rule allows the purchaser of a CD or score (or other individual copy of a copyrighted work) to either sell or lend that copy to another person. So, if you buy the score of a string quartet, you can then resell it. You can also lend it to another person.

You can’t, however, make a copy of it to sell, or to keep when you sell the original. Any copy you may make is, of course, an illegal copy.

It also, in the case of scores/parts (although not CDs or other “phonorecords“), allows the original purchaser to rent his copy to others.

So.

I buy a copy of the score to your most popular piano piece. A pianist I know wants to perform it, but can’t afford to buy it. So (because in this example I’m a bit of a dick), I rent it to him at a lower cost than if he were to buy it. I’ve just – legally – made a profit off of your copyrighted work. I’ve probably not made much, but it’s profit that you’re not legally entitled to. Not a huge deal in the long run, but there are instances when the first sale rule can start to chafe for some. (I’m not entirely sure that I mind this whole thing, but it’s absolutely worth knowing about.)

For example, Choir X buys 60 copies of one of your choral pieces so that they can perform it. A month later, Choir Y wants to perform it as well, so, rather than pay to buy it from you or your publisher, they rent it from Choir X instead. Choir X can rent your piece out to choir after choir, keeping you out of the income loop, and it’s completely within their right to do so. This is a fairly common occurrence, although it seems that more choirs are attempting to buy scores rather than rent them (I’d love to get some statistics on this, or at least feedback from choral staff). It’s also not unheard of in the concert band world. Orchestras do it less because they tend to rent their scores and parts directly from the publisher, and usually don’t buy.

And there’s the interesting point in all of this.

If you fear that copies of your scores will be rented out, and that your sales will suffer for it, your recourse is simply to not sell your scores/parts, but to rent them. Then, the terms of your rental agreement can prohibit the renter from sub-renting to other ensembles. Should you forget that particular provision, then be content in the knowledge that the renter would most likely have to sub-rent the piece at a higher rate than you are charging in order to make the whole thing worth their while, at which point it’s no longer worth the while of the sub-renter, because they can get it cheaper directly from you.

Also a possibility, is the idea of “permanent loan”, which I’ll cover in subsequent chapters on rental agreements.

In terms of practicality, I find the doctrine of first sale to be more academic than useful. But I know that there are composers who do worry about it. There are a lot of factors involved here in the sell vs. rent argument, and, like I said, I’ll cover it in later chapters.

Fair Use
Here’s a biggie. And I surely won’t be able to cover everything in this chapter. So: a quick overview.

Fair use was implemented in order to allow for discussion of copyrighted works, and to further – here’s that phrase again – “promote the Progress” yadda yadda yadda. How is science to further itself if one scientist refuting another’s published claim can’t quote the original in his own paper? How can a book or play be criticized, studied, reviewed, if the original text can’t be quoted? Imagine a TV news story reporting on a concert or musical or gallery opening that couldn’t display any portion of the event in the report – what would be the point?

There are also a LOT of misconceptions about what constitutes the fair use of a copyrighted work: educational use is always fair use; the 15-second limit; the 300-word limit; use by non-profits; the use is non-commercial; etc. There are a lot of instances when the use of some portion of a work is fair use. There are even more that are fuzzy.

My own personal opinion is: when in doubt, ask permission.

That said: it’s late, I’m nearing my 2000 word limit, and I have a mysteriously limping kitten that needs some love.

So let’s meet back here next week to talk in much greater detail on fair use. The week after, we’ll wrap up copyright with a discussion of Copyleft, and then we’ll move on to new territory.

So: what are your thoughts on using public domain texts, tunes, etc in y our work as opposed to more contemporary stuff? Do you have a preference? Let me know in the comments!

I write the Composer’s Guide here once a week, taking time away from my composing to do so. If this post helped you in any way, please leave a tip or a small donation on the way out. If you can’t afford to donate, please pass this chapter along to someone who you think might get some help from it.

And I really love to get feedback in the comments section, via email, and on Twitter – they really keep me going on this project.

Thanks!






The Composer’s Guide to Doing Business: Copyright Part 2

Welcome to this week’s installment of The Composer’s Guide to Doing Business. This week, I’d like to continue our discussion of copyright, and cover the whys and the wherefores of registering your copyrights with the U.S. Copyright Office.

Before we get started, though, I’d like to remind everyone that I’m not a lawyer or a law professional, just a composer with an obsession with the practical aspects of having a career in music. This Guide shouldn’t be interpreted as “legal advice”, but as observations based on experience and (extensive) research.

On to the fun stuff!

Thanks to the Copyright Office’s new online system, registering your copyrights could hardly be easier. The first copyright I registered was back in 1998 – one of my very first compositions, which I guarantee will never see the light of day until some lucky doctoral student decides to write their dissertation on my juvenalia decades from now. My Sonata in C#-minor (yeah, I know) was the first thing I’d written that I’d taken the pains to notate, and it was such a special occasion for 16-year-old me that I raced out to get it copyrighted as soon as possible.

Even then, having to fill out the paper form and mail it off, it was an easy process – so long as you had the right form – and I had no difficulty at all, even at such a tender age. With a little poking around online with my family’s AOL account (who’d have thought the internet could ever have been that young?) I found Form PA, printed it out, and set about registering my very first copyright. The form itself was only two pages (it still is, and hasn’t changed a lick in the intervening years), and took a matter of minutes to fill out. I’m sure I spent infinitely longer looking over the form again and again to make sure I hadn’t overlooked something or misread the instructions. Imagine my surprise to learn that such a fabled thing – a COPYRIGHT – was so easy to register!

Off the form went in the mail with a photocopy of the manuscript and a check for $65, and a few months later (no one ever accused the government of working quickly) my form showed up again in my mailbox with the “Do not write above this line” section filled out with my registration number and effective date. Bliss!

Now there may not have been much call to register the copyright for that particular piece, especially since no one has seen it (and I’ve barely thought of it) since the late ’90s, but by going through the process, I learned a very valuable lesson: things like this tend to be a lot easier than they seem.

Even though the thought of bureaucracy and filling out forms can be daunting to some, registering your copyright is a very simple thing to do. And it’s something that every composer should do, for a number of reasons.

Why Register Your Copyrights?
A few months ago, a friendly acquaintance on Twitter weighed in on my earlier post about copyright, and said that he didn’t think that the government should be the arbiter of copyright at all. I kept my snark to myself, being the polite, gentle soul that I am (*wonders of anyone actually believed that last bit*).

Of course, I wanted to give my acquaintance a light smack on the head.

Government is the arbiter of copyright. And there’s no other arbiter even remotely possible.

Why?

Well, let’s look at some of the benefits of registration, and go from there.

The primary benefit of registering with the U.S. Copyright Office is so that if your copyright is infringed upon, you have clear redress to the situation.

The first step to take in case of an infringement is to get a lawyer. Your lawyer will draft a letter informing the person or business:
a) that they are infringing on your copyright, and
b) that they must stop their use of your materials at once.

The second step is to drag their sorry asses to court. Now, in some instances, the infringement isn’t severe enough to bring to this point. Some people just plain won’t have known that what they were doing was illegal, and will be mortified, and stop what they were doing right away. Chances are, these people won’t have done enough damage to warrant taking to court.

But other people…

Sometimes the other party just won’t stop. Either they don’t care, or they think you don’t mean business, or they’re just black-hatted, mustachioed arch-villains bent upon the destruction of society through their disregard of intellectual property laws. Y’know. The founders of Napster. (I kid, I kid.)

In this situation, your registration with the copyright office will be immeasurably in your favor, because you can’t even file an infringement suit without a registration! Without a registration, the only redress you have is to write letters and cry into your pillow.

If you decide to wait until someone has already infringed on your copyright, you’d better be quick about registering.

Copyright holders who register in a timely manner are entitled to significantly greater damages in infringement suits. Many victims of copyright infringement are only entitled to actual damages – the amount of money the other person gained from the infringement. This usually isn’t much at all, so the costs of filing the suit will far outweigh the damages that you’ll be paid in this instance.

However, when you register in a timely manner and successfully sue the infringer, you’re also entitled to what are referred to as statutory damages, as well as court costs and legal fees. This is a HUGE incentive to register your works.

If your work is published – and, considering as most of us self-publish these days, it probably is – you have two chances to register in what is considered a “timely manner”. Your registration is considered timely if it’s done either:
a) within three months of publication, or
b) before the infringement first occurred.

If your work is “unpublished”, you must register before the infringement occurred in order to be eligible for statutory damages (which can be as high as $150k!), court costs, and attorney fees.

If you didn’t already, I hope you’re starting to see how government can be the only arbiter of copyright. Registration incentives aside, copyright and intellectual property laws define the scope of the protections that you’re entitled to in the event that your music is stolen or used without your permission. Remember from last week that copyright was written into the body of the Constitution – it was deemed more important than the Bill of Rights as evidenced by the fact that it’s not an amendment – in order to “promote the Progress” of the arts. Without these laws in place, there could be no enforcement of any kind of protections, or limits on the usage of another person’s intellectual property.

So while it may feel nice to think that in a perfect world all artists and their works would be protected without the need for government oversight, the cold hard fact remains that copyright is governed by a series of laws; so if you want some redress in the even that your intellectual property is stolen, get thee to Form PA.

But How Do I Register?
As I said earlier, copyright registration could hardly be easier.

Whereas a composer used to have to get Form PA (for Performing Arts, which we shared with playwrights, filmmakers, choreographers, and recording artists), there’s now one online form for most types of registrations, Form eCO.

The advantages of eCO over the paper forms are pretty huge. First and foremost is the lower filing fee. Remember how I said earlier that I paid $65 for the registration of my Sonata? The paper version is still $65, but the online form is a whopping $35. Much easier on the pocketbook!

There’s also a much faster processing time thanks to the lack of paper. Transmission is immediate, nobody needs to sort through stacks of mail and forward them to the appropriate department, and there’s no sloppy handwriting to decipher. Everybody wins! Except maybe the post office….

You can also track the status of your registration, which is nigh on impossible with paper applications.

I just took a moment to go through Form eCO with one of my recent compositions, and it took me a whole five minutes to get through the registration. Definitions and instructions abound, and are very, very, very readable – they’re there to help you understand what you’re doing, not confuse you – and the form tailors itself to your needs – almost nothing is extraneous.

Alas, and alack, I would not recommend (again, this ≠ legal advice) registering works as a collection, unless they are unpublished. (If your works are available to the public, including through your own website, they are considered published.) The Copyright Office’s various publications and sets of instructions repeatedly say not to do it. That said, if you feel compelled to register your separately-published works as a collection, be it on your head.

To learn more about copyright and registration, check out the various publications available at the U.S. Copyright Office website. Also, I highly recommend Stephen Fishman’s The Copyright Handbook, available from the excellent Nolo Press. The ebook version of The Copyright Handbook is on both of my computers, my phone, and my tablet so that it’s available any time I might have questions. I’m a big fan of Nolo, which is a great online legal resource, with many free articles and lots of information. In fact, tonight, one of my favorite online book stores had an amazing sale, so I snagged a handful of Nolo’s books to add to my collection.

The Poor Man’s Copyright
“But $35 to register each work is still too expensive,” I hear you say. “Can’t I just use the Poor Man’s Copyright?” To which I repeat: copyright registration is required in order to file suit for copyright infringement.

For those of you unfamiliar with the term, the poor man’s copyright refers to the practice of sealing a newly-finished work in an envelope and mailing to yourself. The postmark on the envelope, according to this myth, establishes the date of copyright so that anyone attempting to infringe on the copyright at a later date will be foiled in court when the postmarked envelope containing the copyrighted work is produced as evidence.

All well and good, but again: without registration, there can be no infringement suit. And with registration, you’ve only wasted a perfectly good envelope and the cost of postage.

So let us hearken back two weeks to my exhortation to think like a business. Your registration with the Copyright Office is two things: an investment and insurance.

You’re investing in your security as a business, and in the future of your works. You’re also insuring – for a one-time fee, rather than a monthly premium – that should the unthinkable happen, you’re protected against the bulk of your loss. You may, in fact, come out ahead financially, depending on the severity of the infringement and the damages that you are awarded.

If you have catching up to do, do it. Do one piece a week if you can, or one a month, or one every other month. But get it done – protect yourself and your work.

Make copyright registration a part of your self-publishing process. And if you’re nervous about the forms, do a couple of dry runs first – fill some out for different works in your catalog, but don’t submit them, just shred them before doing it for real

So who’s registering works this week? I know I have a bit of catching up to do.

I write the Composer’s Guide here once a week, taking time away from my composing to do so. If this post helped you in any way, please leave a tip or a small donation on the way out. If you can’t afford to donate, please pass this chapter along to someone who you think might get some help from it.

And I really love to get feedback in the comments section, via email, and on Twitter – they really keep me going on this project.

Thanks!






The Composer’s Guide to Doing Business: Copyright Part 1

This week’s installment is part one in a multi-part series on copyright that I’ll be writing over the next few weeks. This week, I want to tackle the basic terminology and concepts behind copyright before moving on in subsequent weeks on ways that composers can and do leverage their copyrights to generate income; the benefits of registering your copyrights with the U.S. Copyright Office; practical concepts like public domain, fair use, the doctrine of first sale, and the “poor man’s copyright”; and the impact of the Copyleft movement. I’ve written briefly about copyright before on this blog, so I’ll be rehashing a bit of old territory, but I’ll be going into greater depth in this multi-part section.

Copyright is a bit of a difficult concept for most people to get their heads around, in large part because it centers on the idea of intellectual property – the ownership of creative ideas, or the expression of those ideas. Things get a little more confusing for composers in some areas. My father – a smart man – has asked on more than one occasion: “When someone commissions you, who owns the copyright?” The answer is, of course, me, but when a CPA with a successful, 30-year career is fuzzy on issues of copyright ownership, you know it’s not a simple subject.

So let’s start with a basic definition of copyright and work from there.

What is copyright?
Copyright is a term that refers to a group of rights granted to a creator – we’ll refer to him as an “author” from now on, understanding that for our purposes “author” is interchangeable with “composer” – with respect to his creative works. Those component rights are:

• The right to make copies of the work
• The right to distribute copies of the work
• The right to make adaptations of the work
• The right to publicly display or perform the work

The right to make copies of the work is pretty self-explanatory. The right to make copies – copyright – get it? Eh? Eh? Upon the creation of the work (specifically when the work is fixed in some tangible form, such as written or notated on paper, or recorded by means video or audio), the author is the only person allowed to make copies of her work. This simple beginning is the lynchpin on which copyright is secured. All other rights, as you may notice as we go along, flow from this first right.

The right to distribute the work means that the author may sell or give away any copies of the work that she has made, yet she still retains ownership of the work, and others are prohibited from distributing the work without the author’s permission. So, after writing your latest string quartet, you aren’t giving up your copyright when you sell a copy of the score, or give one away – you’re merely distributing the physical copy of the work. The right to make copies and the right to distribute the work, when combined, form the basis of the publishing industry.

The right to make adaptations – most commonly referred to as “derivative works” – means that the author may arrange or expand on the original work in other, separate works, barring others from doing the same without the author’s permission. It’s this right that allows J.K. Rowling to continue to write in the world of Harry Potter, and prohibits other writers from writing new Harry Potter stories without Ms. Rowling’s permission. Similarly, a composer may make an arrangement of his piano piece for orchestra or brass quintet or guitar, but another composer may not make arrangements of that same work without the original composer’s permission. This right ensures that the intellectual property that Ms. Rowling has gone to such time and effort to create isn’t usurped by another writer who can’t be bothered to come up with his own world to write in.

The right to publicly display or perform the work allows the author to hang his painting, produce his play, perform his music, or read his novel or poem in public – preferably for a fee – and prevents others from doing the same without the author’s permission. This right is where we get our performance royalties from – ASCAP, BMI, and SESAC have built an entire industry around this one right. Performances via audio or video are also covered under this right.

Now, reading all that, it may seem as though these rights are actually more restrictive than helpful, and maybe the Copyleft folks have it right – copyright only serves to restrict the freedom of speech and dissemination of information. Uh, no.

First, a word about the origins and purpose of copyright in the U.S. (my apologies to my non-U.S. readers – this is all U.S.-based discussion).

Copyright was seen as so important to our Founding Fathers that it was written into the body of the Constitution itself. Article I, Section 8 of the Constitution reads: “The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. From this section comes the legal basis for copyright, patent, and trademark. Powerful little clause there, huh?

The basic purpose of copyright is to promote science and the arts by allowing authors to control the uses of their works. Imagine: if these rights weren’t protected by law, anyone could appropriate our work, slap their name on it, and not only call it their own, but attempt to make money from it. In such a world, what incentive is there to share our writings and scientific findings? (Let me point out here that copyright doesn’t extend to facts, but only to the individual expression of ideas. Consequently, writing a novel set in London doesn’t put London under copyright, only the particular story and characters expressed in the novel.) Obviously, there is a drive in many to share their work for the love of their art or the advancement of science, but the ability to generate income from that work is an even greater incentive to disseminate it. What better way to promote science and the arts than by allowing people to make a living at them?

And Free Speech, while a lovely banner to wave, isn’t an excuse to deprive artists of their right to control how their work is used and distributed. I’ve got a big section planned on Copyleft and these arguments, so let’s move on for now and get back to copyright basics.

You’ll notice that I used the word “permission” a lot in my explanations of the component rights of copyright. Permission is the key to what I often refer to as “leveraging copyright”. These permissions are called licenses, and are the basis for the entire music business.

Licenses
By giving another person permission to arrange your string quartet for full orchestra, or sell copies of your score on your behalf, or publicly perform your music, you are granting them a limited license to exercise one of your rights as an author.

Licenses can be granted for any individual right or group of rights, for any length of time that you might specify in your agreement with the licensee. Licenses can be exclusive – i.e., only one licensee may exercise those rights for a period of time – or non-exclusive – multiple licensees may exercise the same right at the same time. Licenses are the basis for royalties, publishing agreements, recording contracts, you name it. Basically, anything that will earn you money from your music is due to a license on your copyright.

When you join a Performing Rights Organization (PRO), such as ASCAP, BMI, or SESAC, you authorize the organization to license performances for you – in other words, to act on your behalf in exercising your right to publicly perform your work. So when an ensemble wants to perform one of the works you have registered with your PRO, the organization authorizes those performances and collects the fees that it charges for the licenses. This type of license is a very limited license – it extends to specific performances, and no more. Any performances of that work that aren’t licensed by your PRO are unauthorized, and a violation of your copyright.

When you grant another composer permission to arrange one of your pieces, you are granting them a license to exercise your right to create a derivative work. Any derivative work here, by the way, has its own copyright, which is now split between you, as the original author, and the arranger, as the author of the arrangement.

When a piece of yours is recorded, you’ll have a mechanical licensing agreement (and you should be paid a licensing fee). When that recording is broadcast, the broadcast is licensed, and you receive a royalty. When a piece of yours is used in a film, TV show, or commercial, the filmmaker etc will have to secure a synchronization license, for which a fee and/or royalty is paid to you.
If a piece of yours is recorded multiple times, you’ll be paid a compulsory license royalty.

All these opportunities for income – however big or small – are because of licenses.

Assignments
While licenses are for individual rights or groups of rights, an assignment is a little different. When you assign your rights to another person or a company, you give them all of your rights to a particular work, typically for the life of the copyright (we’ll get to that).

In the concert music publishing world, a composer typically assigns his rights to his publisher. He forfeits his rights to the work, and the publisher becomes the effective “author”. In exchange for this assignment of rights, the publisher then pays the composer a percentage – typically 10% – of its gross sales for that score. (Now, I have a lot of thoughts about this, as y’all may know, so obviously stay tuned for the posts I’ll have on Publishing and Self-publishing later in the Guide.)

Duration of Copyright
Works don’t stay protected by copyright forever. There’s an expiration date for each work’s copyright. Because U.S. copyright law has changed several times in the past century, most notably to extend the duration of copyright, it can be a little confusing when it comes to knowing what is still protected by copyright and what is in the public domain. Unfortunately, there’s not always an easy answer to this. It’s almost always easier to determine whether a work is still protected under copyright than to determine if it’s not.

For works written as of January 1, 1978, the duration of copyright in the U.S. is the life of the author plus 70 years. So for your own works, you’re fine until you die, and then some.

But when quoting or sampling other works, be careful and be educated.

Quotation / Sampling / Text Setting
Before I sign off for the week, I’ll touch on one final thing. Not exactly a copyright basic, but it ties in nicely with licenses.

If you find that you absolutely need to quote or sample another work whose copyright is held by someone other than yourself, you’ll end up licensing that portion of the original work. Likewise, if you set a text that isn’t in the public domain, you’ll end up licensing it from the publisher or author. Don’t play it fast and loose – just ask for permission. And if you don’t get it, move on. We’ll talk more about securing permissions in coming weeks, though in the meantime, ASCAP has some good resources for this very topic.

On that note, I bid you a fond farewell. Next week we’ll continue with more copyright! Yay!

Disclaimer: I’m not a lawyer, and these posts shouldn’t be interpreted as legal advice. They’re my interpretations and opinions. If you have specific questions about copyright, I highly recommend Nolo’s excellent publications on the subject, or consulting an intellectual properties lawyer. If you think you may be the subject of copyright infringement, absolutely consult a lawyer.

I write the Composer’s Guide here once a week, taking time away from my composing to do so. If you find value in this blog, please do leave a tip or a small donation on the way out. Thanks!






Doing Business: Copyright

A composer colleague of mine asked me to say a few words on copyright, on which I think I have a few reasonably intelligent things to say.

Copyright, in my opinion, is a much-maligned, almost-always-misunderstood, wonderful necessity to creative endeavors. That said, it’s very easy to misunderstand the concepts behind copyright, and there’s much in modern society to make things even more confusing.

First, what is copyright? Copyright is a group of rights automatically granted to the creator of an intellectual property (for our purposes, a musical work). At its most basic, copyright is the right to create and distribute copies of the original work. (And let me just point out that it’s copyright, not copywrite – a work is not copywritten, it is copyrighted.) However, there are subsidiary rights that come with the “right to copy”, such as:

• the right to create derivative works
• the right to perform or display the work publicly
• the right to transmit or display the work by radio or video
• the right to sell or assign all or a portion of these rights to others

These are some awfully important rights, and they’re often overlooked.

What makes copyright so important is that it allows composers to control when and how their works are used, and in the process hopefully make a living from it. Let me offer a few examples.

Publishing
A composer can assign (all or a portion of) her rights to a particular work to a publisher in exchange for distribution and a royalty on sales. The publisher now owns the right to create and distribute copies of the work and generate a profit from those copies. The composer, in exchange for this assignation of rights, is entitled to a royalty on each sale. We’ll not go into the details of royalties, and my opinions on assigning rights to a publisher, in this essay – I could go on for ages, but that’s not what we’re here for. This is the most common way for a composer to leverage her copyright to earn money.

Slightly more complicated is the assignation of rights to a record label. Copyright for audio recordings (or phonorecords, as they’re outdatedly referred to in copyright law) is in some ways counterintuitive, and I’m still learning the ins and outs of some of the finer points. Suffice it to say that the copyright to the piece of music remains with the publisher or composer, but the copyright for the recorded performance belongs to the record label. The composer and publisher are entitled to royalties in this case, as well, although they’re much, much smaller.

The first recording of a work is the only recording that the original copyright holder has any substantial control over. If a piece has never been recorded and commercially released (archival recordings, meaning recordings that have never been released for sale on any level, don’t count as a commercial release, and don’t count toward/against this requirement), its composer or publisher may refuse permission to any performer or label that wants to record it, and the composer or publisher may negotiate mechanical licensing fees, royalty rates, and other fees associated with the use of the work for the recording. However, once that first commercial recording has been made, any other performer or record label may record it without permission, and are only required to offer a “compulsory mechanical license fee”, which is a whopping $0.091 for works under 5 minutes, and $0.0175 per minute for works over 5 minutes. It’s not a lot. At all.

You can see why leveraging control of copyright can be important here. Let’s imagine that I allow a pianist to record one of my works and make it commercially available on a disc. The performance isn’t very good, and the recording quality is sub-par at best. It sells maybe five copies a year. I negotiated a fair royalty rate with the pianist, but with such pitiful sales, it doesn’t matter since it’s not selling anyway, and the recording is bad enough that I don’t want it representing me, so I don’t actually want it to sell. Along comes Deutsche Gramophon (since we’re playing out a litle fantasy here), and they decide they want to put it on a compilation disc. Since the piece has already been commercially recorded and released, I can’t negotiate a decent royalty, so when the recording turns out fantastic and sells like hot cakes (ahh, fantasy), I’m paid literally pennies per copy. (This scenario could then be turned to my advantage, but that’s not a copyright issue; instead it’s a marketing one – another discussion for another day.)

I should point out here, albeit briefly, that there is a substantial difference between performance royalties, print royalties, and mechanical royalties. Performance royalties are paid by a Performing Rights Organization such as ASCAP, BMI, or SESAC, and are paid for live performances of your works. Print royalties are paid directly by your publisher (if you have one), and are for sales of scores and printed music only. Mechanical & digital royalties are paid through a mechanical licensing agency like the Harry Fox Agency (there are several others) or directly from the record label/recording artist if you aren’t registered through an agency, and are for CD and MP3 sales only. Some finer points: mechanical/digital royalties get paid only for sales because CDs and MP3s are assumed to be for private use only (listening in your home, your car, on your iPod). However, when a bar plays a track from a CD, or a piece is broadcast on the radio or on TV, it suddenly becomes a public performance, and is paid as a performance royalty through your PRO. “Live performance” isn’t limited to human beings on stage in front of other human beings; it is any public display (remember that in the bulleted list above?) or presentation of the work, and is consequently paid as a performance royalty.

Derivative Works
Because I’m the owner of the copyright, I’m able to make derivative works based on the original piece. I can take my piano piece and arrange it for orchestra or Pierrot ensemble or string quartet. I can also create an orchestral suite on themes from my latest opera. Since I created the original work, I have the right to do with it as I please.

However, when I assign those rights to a publisher, they have the right to create derivative works – or, more likely, hire an arranger to create derivative works. I’m now in the position of having to ask my publisher for permission to arrange a piece that I wrote in the first place.

Let’s move outside the scope of music for a moment, and think about novels to explain a bit further. If I were to write a short story or novel centered around a young wizard named Harry Potter, I’d be in a world of hurt because that character – that intellectual property – is owned by either J.K. Rowling or her publishers (it depends on the wording of her contract, which I’m obviously not privy to). Any fiction that anyone might write starring the Boy Who Lived would be considered a derivative work, which is the purview of copyright.

Similarly, any piece of music I may write that makes use of a theme or themes by Benjamin Britten would be considered a derivative work. If I were to orchestrate one of his piano pieces, I would be creating a derivative work, and consequently violating his publisher’s copyright.

Conversely, if I were to authorize the creation of a derivative work such as a choral arrangement of an art song, I would still be entitled to a royalty since I’m the creator of the original work. I can authorize arrangers to create multiple versions of a handful of my pieces with varying instrumentations, and offer them for sale under my own publishing company. I’d owe the arranger a portion of the royalty (depending on my contract with him), but I would in turn have a larger catalog to leverage. Or, you know, I could do it all myself and not owe anyone else royalties.

Performance and Transmission
One of the cornerstones of a composer’s income, aside from commissioning fees, is performance and broadcast royalties. Every time a piece of mine is performed publicly, I’m entitled to some sort of royalty. If this provision weren’t a part of copyright law, my works could be performed anywhere and by anyone without benefiting me in the slightest.

Now, some composers may not have a problem with this because they’re just happy to have their works out there. However, the problem isn’t just that I’m not making money off of a particular performance: it’s that the performers/presenters/performance venues are profiting from my works while I’m not. Allowing non-creators to profit from the creator’s work creates a huge inequity. In fact, it creates a huge disincentive for the creators to stop creating. If everyone but me makes money off of my work, why should I continue to do it?

And there, folks, is the crux of copyright in the modern age. By not enforcing copyright, creators are put at a huge disadvantage. I, for one, would appreciate being able to make a living at the career that I’ve put over half of my life into. Just because I love writing music doesn’t mean I should do it without compensation. This starts to segue into another conversation about commonly held views and misconceptions about creators. And it’s a conversation that needs to be had – loudly and in many venues.

Where do the waters get muddied?
A few things start to muddy the waters here, and it can be difficult to discuss them rationally, or to separate the exact problem from what seems to be the problem.

One problem that people have with copyright is that it seems to benefit large corporations more than it does the individual. Now, in many cases this is true. But not true enough to abolish copyright, as some would like to do. One of the difficulties here is that corporations have the resources to lobby congress to revise copyright law to benefit them more and more. It’s happened more than once. The Disney corporation and the Gershwin estate have had an active hand in pressuring members of congress to extend copyright further and further so that they can maintain a hold on their previously-copyrighted properties. These extensions do next to nothing for individuals. I, for one, will never benefit from the extensions, because I’ll be at least 70 years dead by the time my copyrights expire. My estate might benefit from them, but not to the degree that Disney will benefit from owning Mickey Mouse or the Gershwin estate from owning Rhapsody in Blue. This seems to be the public face of copyright to most. I’ve seen lots of comments threads in lots of blog posts and news outlets decrying copyright as a purely corporate tactic to make even more money at the consumer’s expense. Because they don’t understand the true nature of copyright, many people can’t see how it benefits the individual and encourages creation.

Even creators themselves often have issues with copyright because they don’t really understand it. Many young composers and artists see copyright as an impediment to their being able to get their works seen and heard. It is only if you make it. One of the ways that people are trying to loosen copyright is through things like the Creative Commons license. I know more than one composer who mistakenly thinks that Creative Commons is a substitute for copyright. Clearly they don’t understand what they’re talking about. Even Creative Commons makes a big point of saying that it’s not a substitute for copyright. It’s an appendage to copyright.

Creative Commons is a licensing tool. Notice that it’s called a Creative Commons license. Take a look at the different types of CC licenses and then take a look at the rights granted by copyright law. Look familiar? If not, look again. CC allows a creator to grant particular rights to non-creators – various distribution rights (with attribution, without attribution, for/not for commercial use) and rights to create derivative works.

I, for one, would never use a CC license with regards to my work. I prefer to take things on a case-by-case basis, and grant permissions where I deem it appropriate. But that’s my own choice, and isn’t right for everyone. I’ve had pop remixes done of some of my art songs, I’ve had my scores used as the basis for an entire body of work by a visual artist, and I’ve had one of my choral works recorded professionally. In all three cases, I’ve assigned rights as needed, and had absolutely no problem with legal issues. People who want to use my works in some way come to me, ask my permission, and I grant it. It’s that easy. I don’t need a one-size-fits-all license from a faceless entity, thanks.

Obviously this isn’t all there is to know about copyright. There’s lots I don’t know, and that I’m still learning. But I do know that copyright is the thing that will allow me to generate income from my works and actually have a career as a composer.

Disclaimer: I’m obviously not a lawyer, and my writings here shouldn’t be construed as legal advice.


Response Part 2

After I posted here the other day about my comment at the J.W. Pepper blog, there was a fun and lively conversation on Twitter about self-publishing. Those that were involved generally seemed to be of the opinion that they’d much rather go the route of self-publishing because of the level of control that it affords them, as well as the higher royalty rate and the fact that they keep all of their rights.

The next morning, my comment was approved, and the composer/blogger who wrote the original post responded. Unfortunately, his response didn’t really address any of the points that I made, and instead continued to plug the legacy publishing system without offering any support for why he thinks it’s a good idea. Here is his response (which you can also find here):

Dear Dennis,
Thanks for your response to my article. I’m not surprised by your comments, and I can see where you’re coming from. No question, great music deserves to be published, recognized, and performed, and I know it can be extremely difficult, or impossible, to find an established publisher that considers the work to be a profitable investment. But, when I see self-published music that does have the attributes of a profitable publishing investment, I like to encourage the writers of those works to go the route of commercial publishing. I realize that in some cases self-publishing might be the composer’s only reasonable alternative.

And here is my lengthy response:

I still completely fail to see the benefits of going the route of legacy publishing (if you want to know why I use the word “legacy”, Google the phrase “legacy system“).

First, I have to give up *all* rights to my creative efforts. I give away my copyright, and all claim I have to the piece I just spent days, weeks, or months writing, to a corporate entity with no real stake in its success or failure.

I can’t even write an arrangement of that piece anymore without asking the permission of my publisher. I wrote it, and they own it now. In exchange for what? I have absolutely no say in cover design, pricing, distribution or marketing methods, or whether or not my piece actually makes it to print. A publisher has zero obligation to actually put the piece into print once the contract is signed – they own it, they can do with it what they will. And unless it’s stipulated in the contract, they don’t have to create parts (another horror visited upon one of my friends – he wrote a piano trio, which was published by one of the big houses, yet they never made parts; instead, the score is sold in sets of three for over $100 – it’s never been bought, ever, and it’s been sitting in a warehouse since the mid-’80s). If a particular piece turns out to have been a “bad investment”, then it’s just left on the shelf, and no further effort is put into promotion. And if they decide to license the work for a cause that I find completely abhorrent – oh, well – they own it, and can do with it what they will.

So: I lose all claims to the piece, and have no control over its uses. Fun!

Editorially, there’s not much benefit. Publishers are now requiring composers to engrave their works themselves or at their own expense.

Monetarily, I’m entitled to royalties, but royalties are net of all expenses incurred by the publisher. But what expenses exactly? That’s a good question, and one you’ll never get a publisher to answer with any level of specificity. Salaries of the marketing / legal / art / editorial staff? Rent for their offices? Pencils / paper / office supplies? All are needed to sell my piece, but not all are direct expenses, especially once the piece is printed and on the shelf of some warehouse. However, the accounting departments of publishing houses are quite creative places, and any expense can be used to justify keeping a little more of the pie. Generally, though, in the end I’m left with a royalty of around 10%. Plus, if the piece is ever commercially recorded, the publisher banks the bulk of the recording royalties, as well. Good luck paying your mortgage with that!

And the fun continues! Brick and mortar music stores are essentially off-limits to concert music composers. Patelson’s shut down years ago; the two music shops in my hometown don’t stock concert music, except the Czerny exercises and some beginner piano stuff; and the music shop in the town where I went to college – there were two big schools in town that both had good music programs – didn’t stock anything written after “Mikrokosmos”. Brick and mortar stores are mostly around for instrument sales and rentals, or to peddle the Glee songbook.

Promotion is one of your big reasons for working with a legacy publisher, but again I have to ask: what can a big publisher do that I can’t? I’ve not seen much of this promotional muscle you mentioned, and I do enjoy buying scores and looking for new works to perform – both for myself as a vocalist, and as a concert presenter. In fact, I couldn’t tell you a single new thing that any of the major publishers have picked up in the past few years. I know that Boosey represents Du Yun, but only because I read it on Twitter. Beyond that, I, as a consumer of concert music, have not been marketed to. At all.

And if Twitter is the best promotional tool at the disposal of the big publishing houses, then I should point out that it’s one of the promotional tools at my disposal, too. I have slightly over a quarter of the number of followers that Boosey has, half of Schott, nearly as many as G Schirmer and Peters, and almost two and a half times as many as Subito. If this is the future of concert music promotion, then I’m playing with the big boys.

Ok, yes, the publishers have an easier time going to conventions, and have more clout with the major orchestras. But what’s to stop me from banding together with some of my composer friends, renting a booth at one of these conventions, and marketing our works directly? Just by being there, we’ve gained some name recognition, and we can market our works directly to performers and directors – much more passionately and personally than a publisher could do.

A publisher is interested in making sales. Any sales. They have no interest in the individual welfare of their composers. Individuals who work for a publisher may take an interest, but the corporation itself is interested in one thing only: maximizing profits and minimizing risk/loss. And to romanticize the role of the publisher is, frankly, silly. A publisher is a business partner, not a friend, and should not be a source of artistic validation. The gatekeeperism inherent in the system has been romanticized to a degree that has crippled countless composers’ careers. My works are only valid or good if some faceless corporation says they are? I’m sorry, no, my works are valid and good because I stand behind them, because performers enjoy presenting them, and because audiences enjoy hearing them.

While you didn’t really address any of my points in your response, this idea seems to be at the center of it: composers who are good enough should get a publisher (*snap*, get one, just like that), and those that aren’t good enough, well, self-publishing is a reasonable alternative whose relative obscurity won’t get in the way of works that have been vetted by the sales department of X Publishing.

There are a lot of composers who are very successful, and who self-publish their works. Most notably, of course, is Jennifer Higdon, who I think it’s safe to say is good enough to get a publisher if she wanted. And she has some pretty interesting things to say on the nature of publishing and self-publishing at the NewMusicBox. That a composer as successful and respected as Ms. Higdon should consider the idea of giving her rights to a legacy publisher to be “absurd”, I think is very telling.

Meanwhile, I’m making sales this week and pocketing 92% of the cover price (these are digital sales). That’s a royalty rate that no publisher could ever offer. And while my score sales aren’t going to be paying my rent (yet), I’ve covered my web hosting fees for the month (read: I’ve recouped my marketing expenses). I made those sales the way that composers have been making sales for ages: one person heard me perform one of my own song cycles with the American Opera Projects recently, and the other is filling out a series of recitals and found me by Googling a phrase that is particularly pertinent to me and my music.

And unlike with a legacy publisher, I’m creating a personal relationship with both – I’m thankful for their support and for the fact that they enjoy my music; and in creating this relationship, I’m hopefully paving the way for new collaborations or commissions or score sales. With a legacy publisher, there’s a monolithic wall between the composer and the score buyer that discourages such a personal connection. Had either person I mentioned bought my music through a legacy publisher, I wouldn’t know it, they wouldn’t know me, and there would be no way to know that there are already plans to perform those song cycles in various parts of the country.

One final point, and then I’ll stop typing for now.

Author Kristine Kathryn Rusch (www.kriswrites.com) has been making some great arguments in favor of self-publishing for writers (as have Dean Wesley Smith and Joe Konrath, whose blogs I encourage everyone to check out), and while there are some qualitative and quantitative differences between the book publishing world and the concert music publishing world, certain tenets hold true across the board. I’m not completely against legacy publishing, but I don’t think it’s a very good *business* decision at this point in time. (As I said before, I’m much more interested distribution at this point, which doesn’t require a publisher.) And that’s the heart of my argument – every decision a composer makes regarding her scores and their uses should be sound business decisions. I’m not speaking of artistic choices, which are entirely separate – it’s after the artistic choices have been made, we must be savvy in the way we approach our careers. So I’ll end with a quote from Ms. Rusch’s blog, substituting “Composer” for “Writer”:

Composers Are Responsible For Their Own Careers.
Composers Are Professionals.
Composers Are In Business, And Should Behave Like Business People.

As always, thoughts and responses are welcome in the comments section!