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Copyright Limbo my song re-released with new Title no credit

 
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Songstress
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PostPosted: Fri Jul 18, 2014 12:47 pm    Post subject: Copyright Limbo my song re-released with new Title no credit Reply with quote

Hello
Some years ago I met the musician/artist X. He asked to record one of my songs as a single, on condition that I give him half of the publishing royalties for his musical arrangement/backingtrack. So I assigned this single song to a publisher on a collection deal. My publisher then registered the song with PRS and when requested, released artist X's 50% to his then publisher via SACEM in France. There was no dispute and we were both credited on the vinyl.

Fast forward to more recently, and by accident I stumble upon a new version of exactly the same (my) song with a new production, released again as a single off an album by the same artist X who is a master musician, international artist and musical icon. Looking at the cd label the whole song was attributed to artist X and the song was given a different title.

I am a PRS member so I had an advice session with a solicitor on their list, who advised it would be a simple matter for any publishing company to deal with and offered to introduce me to one. But as the original publishing company's (now retired) owner said her company will take care of it, I decided to stay with them.

My publisher's (a large independent) representative then put in a duplicate claim on my behalf to register my 50% claim on the new title. PRS changed the registration to merge the two titles and the royalties are going to an interim account at PRS. My publishers employee then eventually received an offer of just 15% of the new title, from artist X's new (uk) publisher (to say that Artist X told them the new title has different lyrics but as it is based on my original song hence he is willing to make this offer)
The fact is that it is exactly the same song, the 2 verses, bridge, chorus , words, melody all the way.(I have the old and the new version) Then the employee who was dealing with it has left my publisher and no one has replied to the offer yet for some time.

Do I need an expert independent professional ‘s opinion that all the lyrics are the same? even though any English speaking person would come to that conclusion anyway? As my publisher seems inactive, should I try contact Artist X’s publisher myself? Let him compare for himself?

I am active on the live music scene and I want to release a version of this (my) song too!!!

The last person I talked to from my publisher, told me that I would not be able to release/make public my version until the ”duplicate claim” and shares of the copyright is agreed (and that is moving painfully slowly if at all) is this fact?
Any advice for this situation would be much appreciated.
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AndyJ
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PostPosted: Fri Jul 18, 2014 9:35 pm    Post subject: Reply with quote

Hi songstress
(I'm not sure if the 'stress' part of your name refers to the fact you are female, or whether it reflects the stress you are under right now, LOL)

Anyway, as you seem to be aware, but many readers of this forum may not, the music business represents about the most complicated part of the copyright jungle, so bear with me while I try and clarify what I think is going on here.

First of all you say that this artist provided an arrangement and backing track for your song. From that I presume that the words and melody are strictly your work. If that is so then I think you were uncommonly generous in allowing him to have 50% of the royalties. I say this because generally speaking details such as an arrangement or backing track would not count as part of the song writing, but be classed as part of the production or recording process. I'm not sure how, beyond the joint credit on the label, you have formalised this arrangement which effectively makes him a co-author. This is not the same as a joint author because where joint authorship occurs, the contributions of the individuals cannot be separated out. This distinction matters because the two types of 'ownerships' provide different rights to the partners.

The next issue concerns your publisher and your agreement with them. You say that you assigned just this song to them. That is perfectly normal music business practice, especially for new or less well-established song writers. What this means is that you no longer own the copyright in your song (or at least in your half of it) and so the major responsibility for resolving the current issue lies with the publisher. Much will depend on the exact terms of the contract you signed with the publisher. For instance what was the term of the agreement (the 'rights period') and was there a reversion clause in it whereby the copyright would be assigned back to you at the end of the contract? Also what were the agreed advance and royalty rates? And most importantly was there a 'best or reasonable endeavours' clause which requires the publisher to actively promote your song? This is key to now getting them to take up the fight on your behalf.

Simplistically, in the last paragraph I implied that you had assigned the whole of your copyright to the publisher. Technically this is not true, because in order to be a member of PRS you need to assign them 50%. But the end result is the same. You do not now own the copyright; you just have an entitlement to the royalties owed to you by both the publisher and PRS. And because you no longer own the copyright, you are not able to bring a claim of infringement, should matters go that far.

And that leads to the next issue. Which royalties are we talking about? In this context there are two main rights which can earn royalties: the performing right (not to be confused with performance right which something a performer gets when they give a performance), and the mechanical right. Performing right is the one you mentioned in your posting, and this is the one which is administered on your behalf by PRS. The mechanical right is the right to license record companies etc to make and sell recordings of your song and can be administered either by the Mechanical Copyright Protection Society (MCPS) which operates a joint operation with the PRS, known as PRSfor Music, or it can be administered by the music publisher if, as you say they are one of the big players. You do not mention the mechanical rights, but clearly they must involved because you tell us a vinyl record has been produced. There are other economic rights which belong to a songwriter, and which you may well have retained but since you didn't mention them they probably aren't relevant here (they involve licensing the song for use in films or TV, stage shows and in sheet music form).

Then there's the next complication: your 'partner' From what you have said he appears to be being treated as a co-author of the song yet, since he is represented by SACEM I assume he is either French, or works mainly in France. Extrapolating this further, he would appear not to be contracted to your publisher, nor is he a member of PRS. Which is, to say the least, a complicating factor. And here we must go back the issue I raised earlier, about whether this song has joint authors or co-authors. My view is that this is co-authorship, because you and the artist did not set out to write this song together, and your two contributions are separated in time, ie you wrote the song and he came along and added an arrangement much later. On that interpretation, in strict legal terms, you own the copyright in your bit (the lyrics and melody) and he owns the copyright in the arrangement and backing track. However you appear to have agreed to him having equal credit as song-writer on the CD, and from the way you have written it, your publisher seems to have been happy with this. Had you had an agent or lawyer advising you at the time, I think they would have pressed for a different agreement which would have been more beneficial to you. However we are where we are.

So that's by way of a mind clearing exercise on my part. You have now discovered a new version of your song for which you do not appear to be getting the royalties or the credit. If the new record (with the new title) was released in France (I am assuming this because of the SACEM dimension already referred to) then, now that PRS have been alerted to the issue, they should be automatically seeking to recoup the royalties from SACEM which are due to you. Because you are no longer the owner of the copyright in your half of the song, you are reliant on your publisher and PRS to act in your best interests and collect in the maximum royalties which are due to you. In the case of your performing rights, the rate could be around 25%* of the 'publisher's share' and in the case of the mechanical rights, between 35-45%* of the publisher's share. These rates only kick in once any advances have been offset. Note that the publisher's share is not a fixed amount, and will depend on what fees were negotiated for the mechanical rights (and whether this was done by MCPS or the publisher themselves) but typically the publisher's share could be around 5% of the actual retail price of a CD. The trouble with the 15% you have been offered in respect of the 'new' song, is that we don't know what it is 15% of. Ideally these amounts should be quoted on an 'at source' basis, which means taking the publisher's gross earnings, rather than is often the case, based on their earnings after expenses have been deducted. And since I assume this figure has been offered by the French publisher [see afternote below] or record company, they may operate a different system. What is clear though is that this figure is being offered on the basis that the 'new song' is not in fact the old song, and that would clearly seem to be the wrong basis on which to make the offer.

I haven't dwelt on the matter of the missing credit, because obviously if the 'new' song is shown to be the old song, then there is no question about you being credited. That is, unless somewhere deep in the agreement you signed with your publisher there is a clause saying that you waive your moral right to a credit. This is quite common, and in my view, such clauses are unfairly added by powerful publishers etc when dealing with new writers, because it makes life simpler for the company. But even if such a clause exists, it will only apply to deals which have been legitimately negotiated by your publisher, which clearly the release on the 'new' song was not, and so I think it would be entirely equitable to insist in a credit, once the issue of whether the new song is in fact the original song has been resolved.

Given the really complicated issues at play here, I suggest you go back to your publisher and bang the table a bit to get them to honour their obligations to you. Clearly if the terms of your agreement with them are not too heavily weighted against you, you may be able to threaten them with a breach of contract suit. Something similar may need to happen with PRS. Make sure they are doing everything to extract your 50% share of the writing royalties out of SACEM. Too often, the relationship between the collecting societies can be a bit too cosy, and they forget that the only reason they exist is to collect the royalties due to their members.

If you feel you are getting nowhere, try approaching the British Academy of Songwriters, Composers and Authors (BASCA). I'm guessing you aren't a member, but even so they may be able to help, and at the very least they will be able to recommend a good solicitor with plenty of experience of the music business.

Afternote: I perhaps didn't address the issue of the dispute sufficiently last night. Clearly you need to get it established that the 'new' song and your original are one and the same. This can be done by a good exchange of lawyers letters, using MP3s of the two versions as evidence, or it could be taken to alternative dispute resolution. This generally means arbitration, and if you go down this route, the choice of arbrator will be critical because you want to avoid having to involve expert witnesses in order to keep the overall costs down. Once again, perhaps either PRS, your publisher or the BASCA can suggest a suitable arbitrator. It helps that X's publisher is also British (and not as I mistakenly assumed above, French). All of this suggests that you will need to get a lawyer involved, although I wouldn't say it was mandatory, if your publisher was to get a bit more involved. As previously mentioned, the problem here is that you don't own the copyright in your song anymore, and that, in theory at least, removes your legal standing to push the infingement angle. But you do have a contractual arrangement with your publisher, which should mean that they are required to fight for you. I don't know the scale of royalties involved, but you must remain conscious of not paying out more in legal fees etc than you can possibly expect to gain if you are successful, although clearly you also have to think about the longer term in terms of others (including you) who might wish to perform your song. (Update added at 09:22 on 19 July 2014.)

*These figures are based on you owning 50% of the copyright. If you had been the sole author the royalties would be double these amounts.
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Songstress
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PostPosted: Sun Jul 20, 2014 10:06 pm    Post subject: Reply with quote

HI Andy J

Yes LOL the name describes me in both sense of the word!

Thank you so much for good advice. You are right I need to get it established that the 'new' song and my original are one and the same. At present it looks like X has a different publishers on each title. The rights to X’s half share in the original title has been transferred to a major publisher in the uk and the full rights to the new title are with another smaller publisher also in the uk. My very vague estimate of possible royalties due to me on the new title, would be over £1000 but under £5000 for the half share of the new title. I never waived my moral rights in the song, in any form! To be named/credited even in retrospect would enhance my reputation as a songwriter and widen my audience as an artist. However I have no idea of the likely cost of arbitration.

Indeed music copyright seems deep like a rainforest. Hope you will walk one more step with me to explore the co joint writer issue. Now that I am a member of PRS, I could check the registrations on the PRS website. Myself and X are both registered on the original title, both of us as composer and writer, so our contributions are not separated. Possibly relevant is that not just the same lyrics/melody but the musical arrangement too, sounds to be the same on both titles. To me they sound like the same song/music, just played with a different band, so again our contributions were not separated. There was no credit to me on the new title on cd, and the credit on the label of the original title on vinyl was none of my doing as I was not consulted. I and my ‘partner’ never formalised our verbal agreement which was to share 50/50 ‘the royalties’ which I must agree with you, sounds and was vague. Does the above alter that this song is a co or joint work now in your opinion? And thank you again
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AndyJ
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PostPosted: Mon Jul 21, 2014 8:52 pm    Post subject: Reply with quote

Hi songstress,
Taking your last question first, no, I don't think anything that you have added changes my view of the co- or joint authorship issue. The law approaches this as a matter of fact, if the project did not start out as a collaboration between you, then it cannot be a joint work, because quite simply you created something at one point in time, which was adapted or enhanced later by another person. That fact that you decided to divide the royalties on a fifty-fifty basis does not alter the actual copyright ownership. The only decision of the courts that slightly undermines what I have said is one involving the former members of Procol Harum, in which Matthew Fisher, the organist on the iconic Whiter Shade of Pale track, belatedly claimed a share of song writing credits (and thus the royalties) because he came up with the famous 8 bar organ intro for the song. Because the final track appears to have been heavily adapted with improvisation during the practice and recording sessions in April 1967, rather than being a faithful rendition of the song as composed, the court accepted that he had indeed been a co-author along with the band's leader Gary Brooker who composed the music, and Keith Reid who wrote the lyrics, but for reasons which are less clear, the court declared Mr Brooker to be a joint owner of the copyright. This is a much simplified view. There were actually three court hearings: the trial in the High Court, an appeal to the Court of Appeal and a further appeal to the House of Lords. Furthermore there were several other issues apart from copyright involved, including the validity of the contracts the band singed with the record company. If you have time, you can read the judgment of the House of Lords [ur=http://www.bailii.org/uk/cases/UKHL/2009/41.html]here[/url], as it summarises the earlier trials* and addresses the issues in contention.
Anyway after that digression, back to your other points. The cost of arbitration is hard to estimate, because of various factors, but as a guide, if your and X were to agree to use the Intellectual Property Office Mediation service, the fees structure can be found here (in pdf). However arbitration and mediation two different approaches, and my view is that arbitration would probably assist your case better than mediation, where the process is often aimed at reaching a compromise. Arbitration tends to be slightly more expensive because of the skills of the arbitrator. And it worth emphasising that both you and X must be prepared to agree to go to take your dispute to either arbitration or mediation. If either side declines, then it cannot go ahead, unlike a court case which can go ahead if a defendant refuses to enter pleadings or attend the hearing.
Given the amount of royalties you think are at stake, then it seems to me that you should get some proper legal advice. You might try going back to the solicitor who helped you before as he is familiar with your case, or alternatively seek a new lawyer. Make sure you discuss the costs at an early stage, and, if necessary, keep your instructions to specific issues such as copyright ownership, and your contractual relationship with the publishers. I can't stress enough how important it is that they take forward the infringement issue as you have no standing to do so while they own the copyright which you assigned to them. However you can fight the issue of the lack of a credit, as that moral right remains yours.
And I note that you did not mention your publishers in your second posting. They should be able to deal with the matter of X's multiple publishers. Indeed this whole issue should be fairly run of the mill stuff for them to sort out, if they wanted to.


* should you wish to read the judgments of the previous trial and appeal they are here and here.
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PostPosted: Wed Jul 30, 2014 2:05 pm    Post subject: Reply with quote

Hi Andy
Thank you for the links and reminding me of my rights! You said; ‘And I note that you did not mention your publishers in your second posting. Indeed this whole issue should be fairly run of the mill stuff for them to sort out, if they wanted to’. Thank you for that! I talked to them again and I was told they will deal with this. I checked my contract. They are supposed to and are willing to protect the rights it just does not seem to be a priority and time has been wasted. I feel reluctant to threaten them as at the moment they are the only ‘help’ I have.

Thank you for this; ‘Clearly you need to get it established that the 'new' song and your original are one and the same. This can be done by a good exchange of lawyer’s letters, using MP3s of the two versions as evidence’ This sounds cheaper than arbitration. Could just this action establish that the 2 recordings are one and the same song? Or is it the way to just to make them listen and hear for themselves that the 2 songs are the same song. Should I be looking for ‘independent opinions’ whether these 2 titles have the same lyrics or not as claimed. I don’t have much hope that X would arbitrate but maybe his publisher will.


You have pointed out that I still have my moral rights. ; ‘However you can fight the issue of the lack of a credit, as that moral right remains yours’. I’d love to find out more about this! If I started this process and the publisher was backing me up negotiating the copyright infringement, this could be effective. Also I have strong feelings on the issue. Being identified on my works is necessary for me as a songwriter. Also credits and links to name artists in my genre(s) means a lot in the music business and to the public, and I do have other great songs too I'd like them to hear.
But where would one fight for moral rights? Does it involve great expense or can it be Arbitrated or go to Small claims? X is based in France so would I have to fight this in France? Or can I fight it out with his UK Publisher here in the uk? I have been searching in vain for similar cases based on moral paternity rights and have not found any! I do wonder if there are any.
My song was first assigned just before the 1988 moral rights becoming law, but I have never waived them as being credited was always important to me. My publisher said I still have my moral rights. If I had to choose between being credited or getting the royalties, I know it sounds crazy but I’d rather make sure I am credited as I think the song is still very relevant and is one of those songs singers love and will be released again.
Thank you again for your helpful comments and suggestions.
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PostPosted: Wed Jul 30, 2014 5:03 pm    Post subject: Reply with quote

Hi songstress,
Sorry to hear you are still stressed! These things can take an age to resolve, especially as no-one else will have your same passion and impatience for your songs.
I'm glad to hear the publishers appear to acknowledge their responsibilities. You do need to keep prodding them, even though you feel they may not like it. Ultimately the law of contract is on your side and they will know this. Plus you can always take to social media to let the world know how poorly they look after their clients - they won't want that.
I'm sorry if I gave the impression that sorting out the old song/new song issue would be as easy as sending off a couple of MP3s. If your publishers are dealing with musically literate people, then that should be all it takes, but there's always the chance that the other side will want to string it out for as long as possible. That was why I suggested a solicitor's letter, because it does tend to impress upon people that you and your publishers are serious and not going to let it drop. As for the need to get expert musicologists involved, this will depend on the detail of the similarities and differences between the two versions. Again, as this is actually something your publishers should be dealing with, it might be best to leave that decision to them, since you can't actually bring an action for infringement on your own.
As for the moral rights, enforcing them is a matter of the common law tort of breach of statutory duty which means you could start an action in your local county court. But you might find it is better to use the Intellectual Property Enterprise Court as they are more used to dealing with such matters. I am fairly sure the IPEC small claims track does not deal with moral rights claims on their own. And in any case, one of the remedies you might wish to seek is an injunction which the small claims court doesn't dealt with. However since you really want to use the subject of moral rights as a lever, rather than to extract damages, it would not be sensible to go to court straight away. Additionally from a costs point of view it would not be an economically viable thing to do, if you only sought an injunction to get your name credited on the various versions of your song. From what you have said, it sounds like getting an injunction would be the ultimate goal for you, whereas not having to pay you damages may be the more serious issue for the publishers of the 'new' song. You say these publishers are also in the UK, in which case the UK courts would be the appropriate forum; however if you decided to go after the artist X (I'm not sure quite on what grounds as I suspect he won't have made the decision not to include your name on the CD), the threat of court action would be much more effective. This is because the French take the matter of moral rights much more seriously - indeed their copyright law is built around the rights of the author (droits d'auteur). and as evidence of how seriously them take such things, moral rights for French authors last in perpetuity. By the way, it doesn't matter that you signed the assignment prior to the CDPA 1988 coming into force. That would only be relevant if an act which impinged on your moral rights had occurred before that date, since this would have barred you from bringing an action.
But before we get too carried away on moral rights, it is important to note that, in the UK, the moral right to a credit needs to be asserted. You will have been deemed to have done this with the original recording (for which your got a credit), but you haven't done it for the new version for the simple reason you weren't aware of its existence until later. I think it would be very sensible to send a letter to the publishers and record company involved in producing the 'new' song, asserting that you are the author (or co-author, depending on your choice) of the music and lyrics, and in accordance with Section 77 of the CDPA 1988 you require to be credited as such. This of course rests upon the publishers accepting your claim that the new song is in fact the old song, but at least once you have put them on notice by your assertion, they need to think carefully about what to do next since they face the twin threat of copyright infringement and infringement of moral rights.
And you right in thinking that cases concerning just moral rights don't get reported that often. Usually they are additional claims along with some other cause of action such as infringement.
Given the twin track nature of this issue, which fundamentally rests upon getting it recognised that the 'new' song is in fact the old song, you have to rely on your publishers getting on with things on your behalf. If you are a member of the Musicians Union, you could ask them to intercede on your behalf. They also operate a dispute resolution service.
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