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   A ? for macktheknife
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Rick-e
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A ? for macktheknife
« on: Aug 6th, 2005, 8:23pm »
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I hope you don't mind me directing this to you. You seem to have a grasp on this stuff, and I need advice from someone that actually knows what is legal and what is not.
 
Actually I have a 2-part question.
 
First of all, I was in a band about 8 yrs ago that recorded one album. I wrote 1 song (musically/lyrically) and wrote lyrics for 2 others. Previous to my leaving the band we had written about 20+ songs. (I wrote all of the lyrics/melodies/harmonies)  
About 2 years after I left, they recorded their new album and every song (but one) had all of the same lyrics and vocal parts that I had written when I was in the band. Now, I know that we are part owners in this, but, according to them they are selling quite a few albums. And I've not seen one dime.  
 
Don't get me wrong, its not about the money, its the idea of them using my lyrics (without my permission). But over the last few years they have acquired enough money to purchase new equipment for a studio.  
 
I've never really thought about how serious it was, until I found out that they were allowing other bands to record some of the songs without my consent.  
 
I've always tried to not "stir up" the water; and I've actually written a few more songs for them in the last couple years. But, what is baffling me is that fact that they have sold (according to them) somewhere around 7 to 10 thousand copies in the the last 8 years, at $12. - $15. a pop. Thats pretty serious to me. Is there anything that I can do?  
 
Secondly, I have a small P/W group that wants to record 5 songs, 4 of which are not original. We do not intend on selling the cds, its just for ministry purposes. But, do we still need to get permission to record the songs? I would hate to fall into a trap... Any advice would be helpful. Thank you.
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mactheknife
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Re: A ? for macktheknife
« Reply #1 on: Aug 8th, 2005, 12:47pm »
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Your questions are good ones and while I can speak generally about some of them, the character limit here won't let me go into too much detail and some of it you are better off getting advice from a "real" attorney.
 
First, your second question (it's easier).  In general, you have to ask permission to use or re-use copyrighted material, whether for commercial purposes or not.  One exception to this is a "cover" version of a previously released song.  This doesn't mean you pay nothing, this just means you pay a set rate (currently 9.1 cents per copy per song) but the copyright owner can't deny you permission to use the song.  If the songs are "standards," songs you've heard on commercial radio, etc. there is a clearinghouse that you can go to at http://www.harryfox.com that handles this for most of the major publishers.  If the songs can't be located in there, but have been commercially released on an album, there's a way to get the same effect directly w/ the copyright owner but it's pretty complicated.  Ask an attorney about a "statutory mechanical license."  If a song hasn't been released, you will need the copyright holder's permission, and they may ask for more or less money, or deny you permission altogether.
 
(Heh, that was the easy question!) Grin
 
Now your first (harder) question: generally, if you write a song you're the copyright owner of that song.  This is completely different from the ownership of the sound recording that the song is contained on.  I assume you don't have a written agreement transferring copyright ownership.
 
So, if you write a song and it gets used in various ways, of course it's reasonable to expect payment.  It's normal to use the same rate for cover songs... so let's say there are 10 of your songs on the album and they sell 7000 copies.  That's 10 x 7000 x 9.1 cents=$6370.  Now let's say one of the songs gets played on the radio; you are theoretically owed money from the radio station for performing your song (usually it's done through ASCAP/BMI).  And you're owed by the other bands who've re-recorded the songs too.
 
If you've co-written a song, the other person(s) also own the song, even the parts of it that you wrote; however, it's reasonable to expect that they'll account for you and pay you your share (1/2 of the 9.1 cent fee if it's split among 2 people, 1/3 if it's among 3, etc.)
 
Problem is, recovering any kind of money from people whom you're on good terms with will be a b!@#h because there's a fine line you have to tread... stick your dogs (lawyers) on them, and you will probably lose their trust/respect/friendship, even though it is your right to do so; but do nothing, and you won't see money that not only your friends would owe you, but also from these other bands and people you don't know.  In your case, maybe you could do something in the middle... contact the band and see if you can get a per-song per-copy rate, or a flat buyout, or something like that.  I would also suggest tieing up loose ends so that you don't get blindsided by this in the future... this could include registering your work in the copyright office, and possibly setting up membership with ASCAP or BMI (see http://www.ascap.com and http://www.bmi.com for more details).
 
For anyone in a band or thinking of starting a band that happens to read this, my one piece of advice: get a band agreement in writing.  This should cover (among other things) what happens when someone leaves the band, even if it's on good terms, before bad things start happening.  A good attorney can help you draw this up; see? they're useful even if you're not suing people.  Grin
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Isaac
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Re: A ? for macktheknife
« Reply #2 on: Aug 8th, 2005, 2:37pm »
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In the case of cowriters, my understanding is that each cowriter is a co owner with the right to exploit the work without having any legal obligation to account to the other co writer for any profits.
 
I think Mactheknife has spelled out the issues pretty well.  Copyright and patent law issues are particularly hard to resolve fairly after the fact because the default arrangements set up by law work relatively poorly.
 
A band and any other potentially money making endeavor ends up being a partnership when no other entity is formed.  IMO any money making partnership ought to have an agreement about what happens when the partnership dissolves, a partner leaves, or a new partner joins.    
 
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Isaac
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Re: A ? for macktheknife
« Reply #3 on: Aug 8th, 2005, 4:57pm »
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Rick-e:
 
If you do have some copyright is what is on the album, I would still question if it is possible to enforce your rights.  If they have been selling the album for 8 years, there might be some problem with laches, expired statute of limitations, or even implied license.  Is it possible that you can't enforce your rights in court because too much time has passed?  I don't know the answer, but it might be worth looking into.
 
xieta_IP
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