Musical America Blogs

by Edna Landau

I was fortunate to have as a guest lecturer in my class at the Colburn School earlier this week the noted entertainment lawyer, Don Franzen. He gave a wonderful presentation entitled “Overview of Entertainment Law for Musicians,” which assisted me greatly in answering the following questions.

Dear Edna:

I am a flutist and am interested in producing my own CD. I am wondering if there are legal issues that I need to address as I start this process. Do I need rights to record works for sale? From whom would I get them? Some of the works are older (J.S. Bach), some newer (Ravel, Shostakovich), and some very new. I’m guessing that the process might be different for each.  —Flutist

Dear Flutist:

Your guess is excellent and correct! According to copyright law, you are required to pay a royalty to a composer whose music is not in the public domain (i.e., it is still protected by copyright) if you record their music. You are free and clear in the case of J.S. Bach but in the case of Ravel, some music could still be under copyright protection, depending on when it was written. The music of Shostakovich and  younger composers is definitely not in the public domain. In order to record it, you must obtain a mechanical license. You can accomplish this quite easily through the Harry Fox Agency (www.harryfox.com). Note that the procedure will differ according to how many units you intend to produce. It also bears mentioning that this procedure would apply even if you intend to distribute the recordings for free. You can find more detailed and helpful information about this on the Harry Fox Agency website and in Angela Myles Beeching’s excellent book Beyond Talent. (See the section entitled “Licensing Issues.”) In that book she explains that if the work you are recording has never been recorded before, rather than pursuing a mechanical license, you must get permission from the composer or his/her publisher. Ms. Beeching also gives the following guidelines regarding works under copyright protection: “As of this writing, copyright protection is good for the life of the composer plus seventy years if the work was composed on or after January 1, 1978. For works composed before that date, it’s the life of the composer plus renewable terms totaling ninety-five years. If the copyright on a work has expired, it falls into the ‘public domain’ and can be recorded without a mechanical license.”

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Dear Edna:

 I’ve had cases where composers have asked me via e-mail to perform their compositions and I or the concert presenter was still charged for performing a contemporary work. I do want to promote contemporary works and young composers but this is discouraging. Does it make a difference what sort of venue you perform in?  —adventurous pianist

Dear adventurous pianist:

It is great that you are eager to champion young composers. Please don’t get discouraged! Undoubtedly, you recognize and understand that composers need to be paid for their works just as you expect to receive a fee for your performances. In the majority of cases, performers don’t need to concern themselves about paying rights fees because they play in halls that have blanket agreements with performing rights societies such as ASCAP and BMI and the costs are assumed by the concert presenter. The proliferation of smaller, more informal venues as popular performance spaces is a relatively recent development and those venues are not likely to have such agreements. In such a circumstance, you have a few choices: a) find out the cost in advance and ask the venue if they will take care of it b) assume the cost yourself as part of your overall expenses relating to the concert, if you are presenting it, and hopefully you will be reimbursed through ticket sales or donations c) choose not to play contemporary music on the program (a shame) d) ask the composer who wrote to you personally and seems eager for exposure if they would waive their rights in this particular instance. Hopefully, as time goes on, you will become so comfortable with this matter that you will be able to address if up front with any venue in which you are thinking of performing, and your excitement about performing new music and attracting a potentially new and young audience will inspire them to pay the performance royalty as just a part of doing business.

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Dear Edna:

I have recently been asked to appear on local television in brief interview and performance formats. Can you tell me who owns the rights to what they decide to air? If I were to want to put it on YouTube, would there be a problem? —TV novice

Dear TV novice:

Your question is an important one and it is not asked often enough. If a video recording is made of you by a second party, they retain the rights and you must request permission for further use of it. What you do own are your spoken words and therefore you could publish a transcript of what you said without cause for concern. People are amazingly casual when they upload to YouTube but in truth, the use of any performance footage should be cleared with the source of the footage including, by way of example, a presenter, venue, competition or media entity.

© Edna Landau 2011

by Edna Landau

Welcome to the inaugural installment of “Ask Edna.” It has been heartening to see the immediate response to this new MusicalAmerica.com blog and I thank all those who have already written in with their questions and kind words of praise and enthusiasm. Please note that we welcome your questions not only about the life of a performing artist but also about arts administration and the music industry in general.

Today’s column and the launch of this new venture are dedicated to my late father, Dr. Eric Offenbacher, a dentist by profession who spent the majority of his free time immersed in the music of Mozart. In the thirty years following his retirement, he achieved recognition as one of the world’s foremost Mozart scholars. A strong influence in my pursuit of a career in music, it seems fitting to honor him with Opus 1 of “Ask Edna,” appearing on January 27, Mozart’s birthday.

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Dear Edna:

I think of myself as an adventurous wind player and would like to know how to go about commissioning new music, both for myself and my trio. We are in the very early stages of our careers. Are there any ways to not have to pay a large sum of money?

Dear adventurous wind player:

It is wonderful to know of your interest in commissioning new music. By doing so you will undoubtedly enrich your own life and the life of so many others.

Your best source of information for learning the “nuts and bolts” of commissioning new music is the website of Meet the Composer (www.meetthecomposer.org). Be sure to download “Commissioning Music: A Basic Guide” which includes the cost of various types of commissions and is likely to answer all of your questions. On the website you will also find information about funding sources, but they more typically support individuals and ensembles who are a little further along in their careers.

Many young ambitious performers are finding the answer in kickstarter.com, which is an interactive fundraising site that meshes beautifully with an artist’s social media network. You should definitely explore this route. In addition, you and your ensemble should take careful stock of everyone you know who has a personal interest in seeing you succeed. If you approach a young, not yet well-known composer and ask them to write for you, the fee is likely to be very reasonable and the amount might be rather easily raised through a personal note-writing campaign to those people, perhaps enhanced by a fundraising concert. If you are able to connect with a legally recognized fiscal sponsor, it is possible that individual contributions may be tax-deductible. (I encourage you to visit the website of Fractured Atlas, www.fracturedatlas.org, which explains fiscal sponsorship and the services that organization offers.) If you are successful in securing funding for a commission from an individual patron or small group of patrons, be sure to offer to credit them in your concert programs and ask the composer to credit them in their score of the composition.

Another way to secure new pieces for your ensemble might be to organize a Young Composer Competition. Fifth House Ensemble (www.fifth-house.com) has done this for several years. The grand prize winner receives $500 and a performance on their subscription series in downtown Chicago.

Some composers are willing to write pieces for little or no money in exchange for the prospect of gaining exposure through multiple performances and maybe even a recording (which can be self-produced). With hard work and energetic networking, everyone in such a collaboration stands to benefit. I wish you much luck and hope that your future successes will generate more interesting questions for our readers!

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Dear Edna:

I am a young pianist that has been concertizing for several years. A while back, I produced my first CD to sell at my concerts. It turned out to be very lucrative and also good for promotion, with the cd’s being available for purchase and download on sites like CDbaby.com and iTunes. The only times I wish I had a label is when an interested customer asks what label I record for. Are labels good for anything else these days? And if one were to get a label, is it true that it ends up being very costly for the artists?

Dear Pianist:

I applaud you for having already become a successful entrepreneur with regard to producing your own recording. Having seen the benefits of going that route, I don’t know why you would pay too much heed to an individual asking what label you record for. In such a situation, you should explain (without a hint of defensiveness) that in these times, only a very small number of artists have a relationship with a particular label (artists with significant name recognition) and that you are proud to be producing your own recordings and making more money that way.

There are two areas in which labels can be more effective than your own independent efforts – marketing and distribution. As a young artist, you are probably not a candidate for an association with a “mega-company” but if you think creatively about repertoire and develop a project that might be new to a label such as Naxos, you should remain open to working with them on a one-off basis and taking advantage of their huge network of distribution. You will make little or no money but your name will become better known, thereby enhancing your career profile and potential concert engagements. The best approach might be to develop a discography that is a mix of self-produced recordings and others released on an established reputable label (even if you have to invest some of your own money), according to the nature of the project. Think of a label name that you like for your self-produced recordings and use it consistently. It helps to build up your brand. Today, everyone knows of Canary Classics, founded by Gil Shaham and Oxingale, founded by Matt Haimovitz with Luna Pearl Woolf. Your ultimate goal should be to make every recording distinctive and to evaluate on a case by case basis the best way to bring it to the attention of your fans and the broader public that has yet to discover you. And then, when you are least expecting it, a label may ask to bring you into their family and you will be faced with a very interesting decision!

A Note From Edna
Please submit your questions to askedna@musicalamerica.com. We encourage you to use your real name and e-mail address when submitting your questions in order for them to be addressed in the most meaningful fashion. This information will be kept confidential. I will respond on the website to whatever pseudonym or other identification you designate for that purpose. Please be patient if your question isn’t answered right away. It is my intention to answer a broad variety of questions that I believe could have maximum significance to our readers. All questions will be archived and could be answered at any time.

I look forward to hearing from you soon! — Edna Landau