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Today's Topic:
PROMOTING AND PROTECTING MUSIC ON THE WEB
by Los Angeles-based Attorney, Andrea Brauer
323-661-2440

No one would argue that with the arrival of the internet, a host of
rich opportunities has arisen for the enterprising artist to market and
promote his or her music. But as so often happens in the music business,
the advent of new technology also provides opportunities for some
entrepreneurs to take unfair advantage of emerging artists (and songwriters)
that have little industry clout.

No, we’re not talking about Napster here. The web sites to which I refer
come in two varieties:  The music sales sites and the sites offering
web based programming. Both promise fabulous promotional services in
exchange for the right to distribute your music or use it in their programs. But
beware the fine print. The agreements you sign may have unforeseen and
disastrous consequences on your musical career.

In signing those agreements, you may be unknowingly granting rights
that render your music virtually valueless to the very folks who are willing
to pay top dollar for it. That is to say record labels, music publishers
and film/TV producers, among others. These folks are willing to pay serious
up front money for your music but only if they have the exclusive rights
to it. If you’ve already given those away, record companies and the like
are simply not interested.

In all fairness, most web site agreements do not ask for exclusive rights,
but that can never be taken for granted. And even non-exclusive agreements
are a trap for the unwary. Since these web sites cannot, in good conscience,
ask for exclusive rights, they ask for the next best thing. These agreements
are sometimes called the "for free, forever, for whatever" type of licenses.

The contract used by Oxygen is a perfect example. Oxygen is a cable
network and web broadcaster affiliated with Oprah Winfrey that creates
programming for television and the web. The agreement states that "in
consideration of the exposure provided to the Artist", Oxygen shall be
granted "all rights, including but not limited to synchronization and
master recording rights…in connection with the Programming in all media
in perpetuity throughout the Universe". What this means is that Oxygen
can use the music in multiple programs (including advertisements of the
programs), in multiple countries, in multiple types of media (including television,
the web, home videos, films and soundtracks) forever, without paying a dime.
Not a bad deal considering that many television producers will pay an up front
fee of between $500-$1500 (more for theme music) per program, per song
and will pay additional royalties for home videos and sound track albums.

These kind of all encompassing agreements are the rule rather than the
exception on the web. Recently I received a contract from Broadband
Interactive group, a company comprised of a broadband communications
company and a major sportswear manufacturer. The company produces
sports programming that it is aired on its web site (Bluetorch.com) and on
Fox Sports Network. Their one page contract simply stated that "We would
like the perpetual worldwide rights for all TV (free, cable, pay and subscription)
and streaming, non downloadable internet rights" in exchange for on-screen
credit and web page information. Again, no money was offered.

At this point, the more knowledgeable among you may be thinking that
even though no front end money is offered, back end money might be paid
in the form of ASCAP/BMI royalties. If so, think again. ASCAP and BMI only
pay royalties on television programming if they receive "cue sheets" stating
when a program is aired. I have yet to see a contract from a web site that
promises to send cue sheets. In fact, they won’t even promise to notify
you when and in which programs your music is used. So unless you watch
their networks twenty four hours a day, neither you nor ASCAP/BMI will
ever realize that royalties are due.

You might also be thinking that the promotional value in having your
music in a program is worth granting all these rights for free. Maybe yes
and maybe no. While the cover letters and web pages from these sites hype
all kinds of exposure possibilities, the contract may be silent on the
matter. If there is no provision in the contract itself specifying the
exact credit you will receive, the producer is under no obligation to accord
any credit whatsoever. Furthermore, even if contractually promised, credit
is oftentimes omitted. Producers can be very careless about according proper
credit because they know there is little an artist can do. Unless an artist
is willing to mount an expensive and time consuming lawsuit, credit provisions
are virtually impossible to enforce. Before you sign any contract, check
out the web sites and network programming to see what kind of credit, if
any, artists actually receive.

Even though credit is not a problem on the music sales sites, they too
have their share of contract problems. While you may receive royalties
for music that is sold, many of these contracts seek additional rights
for which you will not get paid. For example, both MP3.com and Spinrecords.com
both have the right to distribute compilation CD’s containing your music
for the purpose of promoting their sites. TheOrchard.com has the right
to "sell, distribute and otherwise exploit any and all of your Recordings
by any and all means and media".

Imagine the outrage of a record company about to release your first
album only to discover that one or more of the tracks is being distributed
far and wide for free. Or, imagine how happy your publisher would be to
learn that it could not exercise control or collect fees on music appearing
in numerous television programs. The point is, you can forget about any
advance you hope to negotiate for the rights to this music. Even some film
producers refuse to consider music that is widely available on the web.

Obviously you cannot give what you do not have and unless you can pull
out of any existing agreements, you will not have exclusive rights to give.
In the eyes of record labels, publishers, etc., your music has become
virtually worthless. Therefore, one of the most important rights to retain when
licensing your music to web sites is the right to terminate the license agreement
at any time or within a reasonable amount of time. Your record company
may still be displeased but at least future exclusivity is assured.

Common wisdom has it that the artist/songwriter trying to break into
the music business must give up most, if not all of their rights to get
a foot in the proverbial door. To a limited extent that is true, but many
web site operators, it seems, are really pushing the envelope in that regard.
In exchange for dubious promises of exposure, they demand a wide array
of rights that may haunt an artist for years to come­especially if
that artist attains any degree of success. And attempting to negotiate
for the exclusion of certain rights­video, soundtrack and publicity
rights to name but a few­will most likely prove futile. Web site personnel
neither have the time nor the inclination to negotiate one on one. There
are simply too many artists anxious and willing to hand over their music,
no matter what the cost.

In sum, if you still feel that the promotional value of the internet
outweighs the negatives, at a minimum, check to make sure the contract
contains the following:

1. That you grant only non-exclusive rights;

2. That both you and ASCAP/BMI are kept informed of the programs using
your music;

3. That credit provisions are specifically spelled out;

4. That you have the right to terminate the agreement.

In taking these precautions, you may not receive everything you hoped
for in the way of exposure or income, but at least you will have something
of value to offer when the big boys come knocking.

_______________________________________

Andrea Brauer has been in the music business for 20 years and has practiced
entertainment law for 10 of these. A graduate of the University of Southern
California Law School, she currently heads her own law firm in Los Angeles. A
large part of her practice is devoted to independent music business ventures
and she currently represents numerous records labels, publishers, production
companies and managers.

Her specialties include trademarks, copyrights, incorporation/partnership agreements,
and contract drafting/negotiations. Andrea is a legal consultant to several music
organizations in Los Angeles including the American federation of Musicians Local 47,
the Songwriter's Guild and Los Angeles Women In Music.

Los Angeles Entertainment Attorney Andrea Brauer may be contacted at 323-661-2440.

Many thanks to Andrea for graciously sharing her time, talent and knowledge.

 

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