In a perfect world (the popular music business?), a record released in one month can have a slow buildup over many months until it is selling a few thousand copies a week, then five thousand, etc. until it begins to chart and build sales based on its radio play. Soundscan counts, the buildup due to touring—all of these things construct a steady growth of demand, and the supply of records is increased to meet it. When there is no such trend, the record companies have a problem. And trends like this are rarely observable in the classical music world. Without records in the racks, no matter what the demand, there will be no sales. How many records of a particular title are required to fill all of the slots in the distribution chain? About 60,000. (In the popular music world, this number is much larger—probably as many as 200,000.) The cost of manufacturing this much product is enormous, and I think it is evident that it is simply not feasible for a company—particularly a small company—to fill this supply line, except in very rare instances. It’s no wonder YouTube and iTunes have taken charge of getting recorded music to customers.
THE COMPOSER-ARTIST: SPECIAL CONSIDERATIONS
Unlike the situation with most popular music recording artists, those music recording artists who have a classical bent (for example, Michael Bolton, Elvis Costello, and Billy Joel) and those who are more traditionally schooled in the classical arts often have aspirations to compose more extensive works than short lyric or art songs. These composer-artists often find themselves in a conflict with their record companies, which want them not only to record exclusively for them, but to record the works they write exclusively for them—preferably radio-ready-length songs.
This kind of restriction can cause quite a dilemma for the composer-artist—especially for an instrumentalist. For example, a violinist is likely to compose works for the violin. Unlike works written for the popular music audience—which are created spontaneously by the artist—classical works are often commissioned by organizations that not only seek to present the world premiere of the work that they have commissioned, but also to have the composer present the work at that event. And of course, the commissioning party may wish to record the work as part of its archive or even as a commercial recording to enhance the funding of its not-for-profit institution.
Many times these works are no more than ten or twelve minutes in length, and yet when the commissioning institution is restricted from including the work among those in a recording of the evening’s performance, the commissioning institution is harmed. Indeed, the threat of such a restriction may even keep the institution from commissioning the work in the first place. Given that the work would never have been written but for the hard-fought-for funds and artistic imagination of the creative personnel in the organization, this seems hardly equitable for the institution, the composer, or the community at large, which would presumably benefit from the availability and celebrity of the work for decades to come.
Another argument in favor of some flexibility toward this kind of composer-artist is that the work that person composes may have nothing to do with the nature of the works to be scheduled or likely to be programmed for recording by the artist for the record company. Even if the artist’s record company desires to promote the artist via the 19th-century-repertoire format, what harm would it do the company to allow the composer-author-artist to record a 20th-century work on an album of 20th- and 21st- century material? It would seem sensible not to impede the artist from pursuing a composing career, even if that entails allowing the artist to step out of his or her exclusivity obligations—as long as this does not unreasonably interfere with the artist’s recording responsibilities to the record company.
It should also be noted that many classical composer-artists write for instruments other than their own primary instrument, for ensembles (full orchestra or chamber-size ensembles), or even for duos, trios, quartets, and quintets. Frequently these composer-artists could not perform such works even if they wanted to, yet they may be asked to appear at the premiere as a guest, or they may have a role in these works, for example, as featured instrumentalist. And they may want to participate in the recording of them—perhaps as one of several instrumentalists or even as conductor.
While just about all recording artist agreements require the exclusive services of the artist for a period of years or a number of albums, the situation described here is relevant only to classical artists. It is rarely the case in the popular field that an exclusive recording artist for one label writes such a significant work that his or her services are requested, or even appropriate, for a competitive label. The only time that an exclusive artist’s musical services (either as singer or instrumentalist) are typically sought by another artist’s label is when the exclusive artist is requested to appear as a sideman on the other label, and the right to do so is subject to yet even more verbiage in the traditional recording artist agreement, covering such things as how the artist’s name can be used on the packaging and in advertising and promotion (usually in a size and placement no different from that of other musicians appearing on the recording), whether the artist’s photograph can be used (usually not), and whether the track on which the artist is appearing can be released as a single. This is not, in general, the case in the world of motion picture soundtrack composers-artists and in classical music.
Whoever is responsible for negotiating the artist’s recording agreement must understand the choices the artist may desire to have in his or her musical career and must seek relief from the rigid exclusivity rules customarily imposed on artists by their record companies. Many negotiators view any contract as if it were a document writ in stone and are reluctant to negotiate its terms; they are paralyzed by the appearance of finality that these fifty- to one-hundred-page behemoths suggest. That is a major mistake. Most provisions in most documents are negotiable, and if artists’ representatives do not attempt to craft their artist’s contracts specifically to the individual needs and desires of their artists, almost certainly provisions will be included that will negatively affect the artists’ careers.
CLASSICAL COMPOSERS AND THEIR PUBLISHERS: SOME PITFALLS AND SOME OPTIONS
Most competent, and many up and coming classical music composers who have been recognized by the industry, have the benefit of classical music publishers which assist them in innumerable ways in their craft. They do not just provide all of the traditional roles of a music publisher, worldwide, including the administration of copyrights and the rights comprising copyright such as mechanical, performing, print, and synchronization rights. They also provide editorial advice, or obtain commissions from third parties, introduce their writers to opportunities for master classes and “composer in residence” opportunities. As with most companies, some are stronger in some areas than in others.
Synchronizations
Synchronizations, in particular, however, suffer from the classical music publishers’ unique specialization. They are far less “connected” to the film, television, and advertising community than pop music publishers. They are rarely as aggressive, or effective, as their colleagues in the pop music field in obtaining uses of music tied to video images. Indeed, they are in many ways alienated from the mainstream because their composers, their personnel, and those who perform or record their music are as well. One of the difficulties they face is obvious: historic classical music is in the public domain and easily and cheaply available to film, TV, and advertising companies. There is no cost for the composition and the availability of sound recordings of this kind of classical music is so vast that the supply dictates a low price for licensing. Things are different for contemporary “classical” works: first, there are few styles that lend themselves to synchronizations; they are either too avant garde, or they are simply too jarring to a public used to melodic alternatives; second, sound recordings rarely exist of contemporary works, and the cost of recording is astronomical, especially if done in the United States; third, companies seeking music to synchronize with their films, TV shows or commercials like to acquir
e finished product and have little or no interest in actually paying to produce recordings of works whose end-product might disappoint them in any event for being inaccessible to the public at large; finally, where recordings do exist, they are usually archival recordings of live performances—often by seventy-to-one-hundred-piece orchestras—but for which no union fees have been paid. To bring these recordings to the public, the cost would be prohibitive.
Accordingly, if possible, classical music composers should consider carefully if they want to place their works exclusively with a classical music publisher as opposed to reserving those works for which, for example, a pop music publisher might use its extensive synchronization department and connections to exploit. Similarly, pop music publishers can request composers to write specifically for a project—such as a television commercial. This would never happen in the classical publishing world. These options are not available to classical music composers simply because access of the composers to the pop publisher is closed off due to their contractual relationship with their publisher in which they park their works permanently and exclusively with a classical music publisher. I have had some success in bifurcating rights between classical and pop music publishers whereby they function as partners in a cause. Egos are set aside and the pull of those who constantly need new content for their audiovisual works is met by two naturally opposing cultural forces now working together toward a common goal—synchronizations—which are fast becoming the most income-producing segment of the music publishing business.
Subventions
Subventions—an unfamiliar word and concept—are unique to the classical music world. When a classical music publisher either obtains, or is offered, a commission for one of its writers, there is a considerable cost to create readable and playable orchestral parts of the commissioned work in order for it to be able to be performed. The cost of such parts varies depending on the nature of the orchestration and the length of the work. Someone has to pay for these costs. The way music publishers and commissioning parties handle this reality is by adding a “subvention” fee to the cost of the commission. This fee can amount to many thousands of dollars and is in addition to the commission fee itself. The publishers and the composer’s manager will usually commission the base fee payable for creating the work in the first place. However, many publishers (but fewer managers) forgo this fee, recognizing the reality that it is via these commissions that the composer often lives from day to day. Often these additional fees are not disclosed or, if they are, they are built into the commission agreement just when the composer needs the commission fee to pay his or her rent and has no opportunity or flexibility to question the language of the document he or she is expected to sign. Furthermore, there is often no rationale provided to the composer as to how the subvention fees have been determined. A $20,000 commission might be accompanied by an $8,000 subvention, which goes to the publisher to cover the cost of creating the “parts.” If the work is designed for a string quartet, or for a hundred-piece orchestra, the costs obviously will differ; but the composer is usually not privy to the breakdown and the third-party editors who often are independent contractors and not part of the staff of the publishing company—and therefore inaccessible to the composer.
The question then becomes: for what is the publisher receiving 50% of the copyright as well as 50% of all earnings of the composition if one of the principal services it is supposed to provide is actually provided by a third party (the editor), and if the cost of providing them is covered by another third party (the commissioner)? Yes, of course, the publisher is often responsible for finding the commission, and the publisher provides a myriad of services to supply performing entities with parts, once created, for subsequent performances (as to which they share in the rental fees, of course). And they are registering the composer’s works in the US Copyright Office and at the composer’s performing rights society, and they are soliciting interest from the performing community in attempts to cause them to perform the composer’s works, but traditionally, their advances to writers are minimal whereas the significant costs of creating parts for instruments are covered by third parties. Some composers “do it themselves.” They hire a couple of professionals who can (1) administer the rights directly on the publisher’s behalf, (2) provide a website or email address to process rentals and collect rental fees, and (3) solicit commissions or work for film, etc. directly or via agents who are specialists in the field. The administration of copyrights is not difficult, as important as it is to do so accurately and completely; for everything else, the independent, nonaligned composer, has multiple options at his disposal that would not exist were he or she to be signed exclusively to a music publisher. This option to “do it yourself” is not appropriate for everyone, but is an alternative that deserves to be considered carefully before the composer relinquishes 50% of the copyright and worldwide control over his or her works for at least thirty-five years (in the United States—see Termination of Grants or Copyrights chapter 20) and essentially forever outside of the United States.
Compositions with Audio or Audiovisual Features
Many contemporary compositions utilize electronic backgrounds or audio and/or video features that are costly to produce. Composers and their representatives (lawyers or agents) must make clear to both parties who is expected to pay for these recordings: usually no one thinks about it until it appears as an issue, and then the composer is usually charged with 100% of the cost. The illogic of this is evident in that the composition is unperformable without the audio component, yet the publisher thinks of it as separate and apart from the composition. Does this mean that the composer should negotiate with the commissioning party for a separate subvention? After all, there are costs of production involved in preparing an audio component for performance. You decide.
Quick Checklist to Refer to in Negotiating Classical Publishing and Commission Agreements
Here is a list for a classical composer or his or her representative to check off when entering into a publishing agreement—these are issues peculiar to classical music publishing agreements; the array of concerns of all composers discussed in chapter 13 obviously applies as well?
❏ Can the cost of samplers be reimbursed to the composer
❏ Most of these agreements provide for automatic extension for the same number of years applicable to the initial term—which can be as little as three years and as many as five. These opportunities to terminate should be dealt with very carefully. Even if the composer has every intention of extending the term of the agreement, provided a few matters of concern are fixed, the composer’s leverage to obtain those changes is reduced to zero if he or she does not exercise the right to terminate the agreement prior to the last applicable date before the automatic extension takes effrect. The termination notice can be quite friendly and acknowledge the composer’s desire to stay with the company provided a few of the composer’s concerns are dealt with, but when the company receives the notice, it will undoubtedly comprehend the reason for it coming at a time following which the composer will have lost all negotiating power had he or she failed to exercise it. A friendly phone call from the composer prior to sending the notice would be wise as well.
❏ Third-party commission agreements should be reviewed on each occasion by the composer’s representative; times change, leverage changes, and things that might have been okay in prior years might no longer be okay in later years. The publisher might be processing these agreements automatically without focusing on things that the composer might deem important after years of foregoing objection to them.
❏ As noted earlier, subventions should be discussed, and labeled as such in commission agreements.
Here is a another check list—this time for a classical composer entering into commission agreements:
❏ Commissioning entities usually want the exclusive right to premier the work and sometimes to record the work for the first time as well (which is an exclusive right of the copyright owne
r until the owner has actually licensed that right to a third party). Both might be perfectly agreeable to the composer, but there should be outside dates set, beyond which the exclusivity as to each promise expires. Usually, there is such a date for the premier performance; less often do the parties realize that if they do not insert an outside date for the recording, the work will be tied up indefinitely, unavailable for recording.
❏ The composer will usually obtain a contractual commitment to provide economy air and first class hotel accommodations for the premier; certain composers might wish that his or her manager or family member accompany him or her to the premier. This is not something that all composers want, or need, all or even some of the time, but if it is important to a composer, it is better to raise it at the inception of a negotiation and not later when the answer will more likely be “no.” The composer’s publisher and staff members who are dealing with the commissioning agent should be attuned to the particular composer’s requirements.
❏ Wherever archival copies of the first performance are created, even if for the orchestra’s own library, a copy should be provided to the composer and another one to the composer’s publisher.
What They'll Never Tell You About the Music Business Page 57