Posts Tagged ‘mechanical royalties’

When Is A Plumber Worth More Than A Violinist?

Thursday, July 9th, 2015

By Brian Taylor Goldstein, Esq.   

We spent a lot of money making a CD to promote our orchestra. Now the composer’s publisher wants mechanical royalties. I just don’t understand why I have to pay mechanical royalties for a CD I am not selling, just giving to donors. Doesn’t the Composer want people to listen to his music?

Does your orchestra sell tickets to its concerts? Why? Don’t you want people to come and listen to the music?

While everyone in the performing arts end of the entertainment industry appreciates the importance of music, not as many appreciate or understand its value. In fact, many don’t like discussing commercial or business concepts like “value” at all. However, an artist’s time and talent is the artist’s service. It’s no less of a commodity that any other service like a plumber or electrician. While many would argue, and I would agree, that an artist is worth even more, when a pipe once burst in my house in the middle of the night, I was far more relieved to see a plumber show up than a violinist!

Whether a musician’s performance is enjoyed live or on a recording, the musician needs to be paid for providing his or her talent. Musicians have bills to pay just like everyone else. For the same reason, when a composer’s composition is performed, either live or on a recording, he or she needs to be paid for providing his or her talent in creating the composition in the first place. While it’s true that some composers receive commissions to create a work, not all do, and a commission fee only pays for the creation of the work itself. Just like an author gets a royalty every time her book is sold and a playwright gets a royalty every time his play is produced, a composer gets a royalty every time her music is performed or a recording made of the performance. When a composition is performed, the performer must pay a performance royalty, most often by obtaining a performance license from ASCAP, BMI, or SESAC. When a composition is recorded, the performer must pay a “mechanical royalty” (an outdated term for a “recording royalty”) directly to the composer or the composer’s publisher. The mechanical royalty is based on the length of the composition and how many copies are made of the recording of the performance of the composition.

I appreciate your frustration in having to pay mechanical royalties for CDs that are given away, but that’s like saying that musicians should be paid less if a concert is free or only based on the number of tickets sold. Whether or not you choose to sell the recordings does not change the fact that you recorded a performance of the composer’s composition. Just because you want to purchase a television to donate to an orphanage doesn’t mean that Best Buy is going to let you walk out of the store with it for free.  While many artists do graciously give freely of their time and talents in promoting the performing arts, that decision is not yours to make for them. Largesse and munificence should be offered, never presumed. If yours is the first recording of this particular work and the composer is not already widely performed and listed to, I bet the composer would consider receiving a number of free CDs in lieu of mechanical royalties.


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The Destiny of Your Master

Thursday, August 11th, 2011

By Edna Landau

To ask a question, please write Ask Edna.

Dear Edna:

I would like to add my voice to the chorus of thanks to you for writing this column, and also submit a question.

I am making the first-ever recording of the complete works of an obscure Romantic composer. Grants will cover all of the cost of recording (no fee for myself), and some of the costs of artwork, printing and manufacturing, as well as the mechanical royalties, as the music is still under copyright. The recording is a labor of love, but will also be a promotional tool for me – something to sell at concerts, give to promoters, etc. I offered it to some cd companies and one fairly large one would like to take it on. The contract, however, will require negotiation. They want sole ownership of the master recording in perpetuity and the right to exploit it in any way or media. They offer to manufacture, sell, distribute and promote the cd. In return, I get 50 copies and the right to purchase more at about two dollars a pop. They have not offered any sort of royalty for sales above a certain amount. It’s so breathtakingly one-sided that I wonder if anyone ever signs such a thing.

The main thing that draws me to the label is the prestige. Do you think a company’s expertise and/or clout in distribution and marketing would be more useful than trying to do it on my own and retaining control of the project? With delivery media changing constantly, it would seem prudent to keep the rights. I would like to be able to offer downloads from my website, or through Amazon, and offer “coupon downloads” to audiences. I’m not a young artist striving to get ahead. I am a middle-aged one doing reasonably well and would just like to know what is reasonable to ask for in such a situation.  —B.V.

Dear B.V.:

Your question is an excellent one that I suspect is on the minds of a good number of our readers. As you will have seen me say before, this is not a black and white situation. The answer might be slightly different for you than for others, depending on the particular record label involved and the role of the recording in the furtherance of an individual career.

In the days when giant record companies dominated the scene, most, if not all, of the artists who wanted to be on their rosters had to give up ownership of their masters in exchange for major publicity and promotional campaigns, as well as global distribution. There was no Facebook, CD Baby, or, so artists didn’t even consider the alternative of going it alone. You are right to ask whether it makes sense to give up ownership of your performance in perpetuity and agree to no financial return, in exchange for a company manufacturing, distributing, and promoting your recording, especially if you funded it yourself. The answer is no, unless you have no other alternative. It’s good that you acknowledge that the proposed contract requires negotiation. You also need to get as much information as possible about the company. You certainly want to know the scope and effectiveness of their distribution and what they are prepared to do in the area of promotion. It would also be advisable for you to ensure that if the record company goes out of business, the rights to your master will revert back to you. (You should try to achieve this even if the recording is simply deleted from their catalogue.) If you can gain access to other artists who have recorded for the label, ask them about their impression of the label’s effectiveness and their level of satisfaction with the working relationship.

While it is certainly possible to manufacture, promote, and distribute your own CD, as well as offer it for download on your website, you are limited by the size of your network of friends and fans and distribution outlets known and accessible to you. It is also a very labor-intensive undertaking. Happily, there has been a proliferation of independent classical labels over the past ten years such as Onyx and Avie, which operate on the premise that you retain ownership of your performance.  You either license it to them or work in a partnership with them on mutually agreeable terms. Either all or part of the cost of the recording is assumed by you but you also receive a portion of profit from the sales. (Note that in some countries such as the U.K., it is imperative for the record company to cover costs relating to copyright.)  Decisions regarding the packaging and design of the CD are made together with you and it should be possible to offer your recording for sale on your website through a direct link to the company’s website. These independent classical labels do indeed have much greater clout and reach than you do. They have developed strong relationships with the media and with distribution outlets, so they are likely to get maximum exposure for your recording. Not every one of them, however, will enter into a relationship with an artist for a one-off project unless it has major and broad appeal. Naxos is known to welcome recordings of composers who are new to their catalogue but I don’t believe they offer the type of partnership described above. Other companies may only want to do multiple projects with artists who have a very active touring schedule since this helps to drive sales of the recording, especially if the artist features the recorded repertoire in their program.

Since you already have an established and reputable company interested in your project and there is no guarantee that you will find another option, I would suggest that you try to negotiate with them and see if you can achieve more favorable terms. It would be advisable to secure advice from an attorney with experience in this area. You can always return to the idea of issuing the recording yourself, especially since your primary interest seems to be supplying it to promoters and selling it at concerts. If you should decide to seek another label, I suggest that you approach them in the context of potential ongoing projects with specific repertoire that you are prepared to offer in your concert programs. If you can obtain a copy of Gramophone magazine, you should be able to compile a pretty good list of independent companies that could potentially be interested. Some additional research on the web will further enlighten you as to the suitability of those companies for the projects you have in mind. Good luck!

To ask a question, please write Ask Edna.

© Edna Landau 2011