A Walk-Through: Sampling

By George Howard
(Follow George on Twitter)

I’ll be writing a periodic set of articles all designed to present the necessary information to make complex topics in the music business more easily understood—”walk-throughs,” if you will.  The first in the series is a walk through on sampling.

I chose this topic because it allows us to view an action—sampling—which requires an understanding of an array of music business elements.  As such, I’m able to introduce several important concepts at the same time.  Even if you yourself are an artist who does not sample, it’s important to understand the process because someone may desire to sample your music.

First, a definition.  Sampling is the act of inserting a portion of another work into your work. For instance, Vanilla Ice inserted the bass line from the David Bowie/Queen composition “Under Pressure” into his song “Ice, Ice, Baby.” As such, Vanilla Ice sampled David Bowie/Queen’s song.

Whenever you question whether something is allowable in the music business, you should always begin with examining the bundle of rights that are automatically granted to copyright holders upon the creation and fixation (writing down or recording) of an original work of authorship.  For a primer on this, please refer to this handy guide.

Ok, let’s take a look.

First things first, should you desire to insert the copyrighted work of another artist into your own work (i.e. sample their work), you immediately bump into that artist’s exclusive right to create derivative works.  This—the right to create derivatives—is one of the six rights conferred on copyright holders.  What this means is that only the copyright holder can do things like: make a translation of their song, create a screenplay of their song, and—most relevant here—create a new song that is in any way derived from the original composition.  So, inserting a portion of someone else’s work—however short that insertion might be—is deemed to be creating a new work derived from another work.  Only the copyright holder of the original work can do this without infringing upon another’s copyright.

What this means is that should you desire to sample someone else’s work in a song you have written, you must go to the copyright holder(s), and seek permission to do so.  Similarly, should someone desire to sample your work in one of their songs, they must come to you. Fair is fair, right?

In terms of what type of deal you must strike with this person (or, they with you), there is no compulsory rate.  In other words, unlike, for example, when you want to cover someone’s song, and can rely on the compulsory license statute, which establishes the rules (including what you must pay the copyright holder of the song you cover), no such statute exists with respect to derivative works; it’s a purely negotiated dynamic.  The person who controls the copyright you desire to sample in your work can grant you the right to create a derivative for free or for whatever fee the market will bear, or just say no, and, thus, keep you from sampling the work at all.

Of course, the same rules apply to you when someone wants to sample your work.  This is reasonable. Imagine someone wants to use your work in their work, but you feel their doing so would present your work (and, by extension, you) in a way that you’re not comfortable with—you wouldn’t want them to be able to just do it anyway.  Similarly, if you are the copyright holder of a very popular song, and someone who is less well-known wants to sample your work in their song (I’m looking at you P-Diddy), you might reasonably feel that this artist is reaping disproportionate benefit from your song; in other words, the popularity of “their” song is contingent upon the established popularity of your work.  In this case, you would want to be compensated in such a way so as to not feel that the artist sampling your work is free-riding, and being unjustly enriched.  By not having a compulsory rate, you are able to do this.

Before we move on to further details with respect to compensation, let’s pull back and examine what exactly is being sampled.  For every song there are two copyrights: the copyright in the composition itself (represented by the (c) symbol), and the copyright in the sound recording of the song—frequently referred to as the “master;” this is the recording/version of the song that is on a CD or download (it is represented by the (P) symbol).  While the songwriter or the songwriter’s publisher is typically the copyright owner of the composition (the (c)); the sound recording (the (P)) is typically owned/controlled by the label who releases the record/CD/download.  Of course, if the songwriter releases the work himself/herself he/she would be the owner of both the (c) and the (p).

Both the (c) holder and the (p) holder have the exclusive right to create derivative works, and so it’s not only the writer of the song (the (c) holder) that you must obtain permission to create derivatives from, but also the copyright holder of the sound recording/master (the (p) holder)—again, typically the label.

Either party can say no, and either party can negotiate whatever deal with you that they want.  Frequently, these deals are “Most Favored Nations” (MFN), meaning that whatever deal is struck with one party (the (c) holder, for example) must also be struck with the other party (the (p) holder).

The copyright holder to the composition (the (c) holder) is the dispositive party.  That is, if the (c) holder denies the usage, it’s game over.  If, on the other hand, the (c) holder agrees to the usage, but the copyright holder of the sound recording (the (p) holder—typically, the label) says “no,” the person desiring the sample can re-record the sample, and, thereby, bypass the (p) holder.

Obtaining permission from the rights holders to create a derivative work is the first step, but, again referring to the six rights the (c) holder(s) are conferred with, we see that there are other steps that must be taken.

Simply having the right to create a derivative, and, thus, include a sample of someone else’s work in your work, doesn’t do you much good if you can’t exploit (sell) it.  In order to sell you must have the right to do at least two other things that—unless a deal is struck with the copyright holder—only the copyright holder has the right to do: reproduce and distribute the work.

The rights to reproduce and distribute a work are, of course, essential to selling that work. Labels that desire to reproduce and distribute the copyrighted works of a songwriter on the label’s releases do so via a “mechanical license.”  Therefore, when a sample is inserted into a song, unless the copyright holder(s) of the sample waives their rights with respect to reproduction and distribution (and, why would they?) the copyright holder(s) of the sampled work must be paid for the reproduction and distribution of the work.

Typically, what occurs is that as part of the deal that “clears” the sample—i.e. outlines things like the right to create a derivative work—details concerning royalties associated with reproduction and distribution are also addressed.  These are negotiated, and — like the terms for the use of the sample—are determined by what the market will bear, but the normal scenario is that the person using the sample gives up some or all of the mechanical royalties to the writer of the original composition.  Note, that a “synchronization”—the use of a song combined with an image; such as in a movie or TV show—also triggers reproduction and distribution issues, and must be addressed in these deals. In short, if your work is sampled in a song, and that song is used in a movie or TV show, you should get paid when that movie is reproduced/distributed.

The last element to consider with respect to rights/income and samples is public performance. The exclusive right to public performance (both in the composition (the (c)) and the sound recording (the (p)) are exclusive to the writer and the master holder.  As such, when the writer and master holder’s works are publicly performed as part of the song that sampled them (that is, when a song that has a sample in it is played on the radio, streamed online, performed live in front of an audience, or, in any manner, publicly performed) performance royalties are owed.  In all cases, a public performance royalty is owed to the copyright holder of the composition (the (c)), and in the case of non-interactive digital streams (such as internet radio, Pandora, or satellite radio), a public performance royalty is due to the master holder and featured performer. The payments to the the songwriter are made via Performance Rights Organizations, such as ASCAP, BMI, or SESAC.  The payments to the master holder/featured performer are made via SoundExchange.

As you can see, the use of another’s work as part of a new work (a sample) triggers a vast array of rights issues.  While—from the point of view of someone who desires to sample someone else’s work—this may seem extreme, from the other viewpoint—that of someone sampling your work—it should give you assurance that you have both control (via the ability to exclusively control whether or not a derivative of your work can be created) and compensation (via your exclusive rights related to distribution, reproduction, and public performance).

For those who feel that having their work sampled is beneficial from a promotional standpoint, and want to facilitate/encourage the use of their works as samples, they can utilize a Creative Commons license that allows the copyright holder to opt out of certain elements of their copyright bundle. For example, they could allow the creation of derivative works, and/or reproduction/distribution with few (attribution, for example) or no conditions. I suggested in a prior article that perhaps another way forward is to create a compulsory license for samples under a certain length (similar to the compulsory license rules around covers).

Certainly, there can be benefits to having your work sampled, as there can be benefits to sampling the work of others—in terms of revenue and awareness—and songwriters/master holders need to understand them, and, if they choose, attempt to maximize their value.

My hope is that, via this article, both those who desire to sample, and those who have their work sampled see that there is a system in place (however effective/efficient it may or may not be), and that the system is rooted in the same copyright law that governs all elements of the music business. To that end, if you understand this article, you’ve gone a long way in understanding the music business generally.

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George Howard is the Executive Vice President of Wolfgang’s Vault. Wolfgang’s Vault is the parent company of Concert Vault, Paste Magazine, and Daytrotter. Mr. Howard is an Associate Professor of Management at Berklee College of Music

A House For Lions: Raising Money Their Own Way

Bands and artists are finding continued success with fan-funded platforms like Kickstarter and PledgeMusic.  When indie rock band A House For Lions  was looking into the different crowdfunding platforms available to help raise money for their debut album, they found another option.  Mike Nissen, the band’s guitar player (and designer), did a little digging to find out if a WordPress plugin existed to help with their approaching campaign. Sure enough, he found Ignitiondeck, a WordPress plugin that lets you to implement a crowdfunding campaign without any fees (except the cost of the plugin itself and small PayPal transaction fees) or middlemen.

The band carefully considered their options, as they acknowledged that using a well-known platform like Kickstarter might result in getting a few more eyes on their project. But at the same time, as they explained, “We realized that we might just be white noise in those other platforms, just another band trying to raise funds for their album.”

One of the plugin’s selling points for the band was that it wasn’t an “all or nothing” model;  “If we come very close to our goal but aren’t fully funded we will still get to make the album no matter what so that our backers will get what they are pledging to help make.”

Any good campaign requires a solid kickoff.  “We wanted to make an intro video that pokes fun at the idea of hitting people up for money, because we realize that it’s a bit of a ludicrous thing to do,” they explained.  So they did just that.  Their launch video shows the band interviewing several precocious children, asking them if they might be willing to spare some money and donate to the campaign. Definitely worth watching.

Also vital to any crowdfunded campaign is that the artist keeps fans interested throughout.  A House For Lions is tackling this by releasing silly outtakes from the launch video and extended cuts from their interviews with kids.  They’re also churning out creative rewards, including t-shirts and posters designed by Nissen. With 9 days to go, A House For Lions has received 54% of their goal.

At TuneCore we always encourage artists to be their own labels.  In the new music industry, artists have all of the resources, and bands like A House For Lions are proving just that.

Check Out the “A House For Lions” Campaign

Learn More About The Band

 

 

Cary Pierce Of Jackopierce Says "Invest In Yourself"

(Note from TuneCore: The post below is from TuneCore Artist Cary Pierce, a member of the band Jackopierce. You can catch the original post on Cary’s blog.  Make sure to check back on the TuneCore blog next week for another post from Cary!)

Invest In Yourself


By Cary Pierce

(This is an excerpt from a book I am working on about being creative for a living. I will post a new chapter every Friday.)

 

(dollar Origami came from super cool site http://www.boredpanda.com/cool-dollar-bill-origami)

Quit waiting for your ship to come in. Start sending ships out.

GIVE YOURSELF A RECORD DEAL OR A publishing deal – don’t just wait around for it.

By writing this book – I’ve “given myself a publishing deal.” I have a computer to write on and I know I can use blurb or lulu.com to print my books for very little money or release it as an ebook.

When it comes to your time, don’t go invest in a bunch of stuff you don’t like/love or believe in just because you think it will make you money.

Start small. Go slow. It’s ok. Warren Buffet is a huge proponent in investing in what you know and taking your sweet time.

You can invest a lot of your most valuable resource (your time) on your own terms. You can work on what you want, when you want  – without someone over your shoulder – wondering when they’ll get their money back.

Some people love having the pressure of using other people’s money. I do not.

My best investments – with returns off the charts – have all been investing in myself or my endeavors.

I have invested in the stock market, in restaurants and in real estate and by far, my best investments have been in the things that I do – mainly songs, records and merchandise.

People like doing business with busy people. People are not attracted to “needy” people. It’s ok to be diligent, persistent, but if you come off as “I really need this money” it’s just not attractive. It’s not a place of power. The least attractive people are the ones who feel they can’t start anything until they’ve raised money.

Do what you can in the interim. Build. They often come. And “they” tend to come when you’re so busy, you really don’t have all that much time to deal with them.

Jackopierce was never out to get a major label deal. Then one day, a Dallas band (Patrick Pike’s “Sister 7”) was getting a record deal through a Nashville attorney, Jim Zumwalt. Zumwalt had been talking a lot with Sister 7’s local distributor, Crystal Clear, and asked them if there were any other artists in Dallas worth checking out.

Crystal Clear told him that their biggest seller, by far, was an acoustic duo called Jackopierce. It just happened to be that JP was playing in Nashville that weekend. We were asked to put Zumwalt on the guest list and we did. The only problem was – the show was so oversold that they would not even let him in the front door. Zumwalt had to come around back to meet us in the alley right before we went on stage.

We were not some band that sent him a demo hoping to get “discovered.” We were not chasing him around town to get a record deal. We were out there quietly investing in ourselves, building our fan base, one city, one college campus at a time. We were selling CDs and t-shirts, making a living and growing along the way.

Zumwalt found out about us and he came after us. It was simple math for him – we had sold over 45,000 copies of our three independent CDs and were selling out shows all over the country. This was a no-brainer for him to take to the major labels. We got offers from several labels (and had a blast being courted by them**) but decided on signing with Larry Hamby at A&M Records in LA. Later we also signed a deal with Warner Chapel Music Publishing.

People like doing business with busy people. People want what they think they can’t have or might lose. It’s just the way it is.

Quit waiting for your ship to come in. Invest in yourself and start sending those ships out.

**side story: our first LA “courting trip” was to visit with MCA (now Universal) Records. They flew us out and put us up in the Universal Hilton (near Universal Studios). They informed us at check-in that we had a $250 per day spending account on the room. We were beside ourselves. The hotel was really nice! And here we were – in Los Angeles being courted by one of the biggest entertainment companies in the world! Once Brady (our manager), Jack and I got into the room, we got a call from Ron Oberman (the MCA A&R guy that was trying to sign us) to set up a time and place for dinner. When I picked up the phone, he asked, “Cary – what are you doing in Brady’s room??” Brady’s room? It turns out he had gotten us each our own room room with $250 per day to spend. We were even more beside ourselves!  Good times!

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Cary Pierce is a professional musician, songwriter, performer, producer and event creator. He’s also half of the band Jackopierce.  You can read more excerpts and news from Cary here.

How To Start: An Interview With John Strohm

By George Howard
(Follow George on Twitter)

Where to start? When to start? How to start? These are the questions that come up so often. The questions raised by anyone who feels his or her music should be heard, but is unsure of the appropriate next steps.

I recently had the opportunity to interview my good friend John Strohm. John is uniquely qualified to speak to the above questions.  Sure, John is now a successful entertainment attorney— representing, among others, Grammy winners Bon Iver, and one of the most successful independent (and by that I mean their own label, distro through TuneCore) artists of all time, The Civil Wars—but long before John became a man of law, he too was an independent artist working his way through the same issues and opportunities that you may be.

While attending Berklee College of Music, John started a band called The Blake Babies with fellow Berklee students Juliana Hatfield and Freda Love.  The Blake Babies, through great songwriting and hard work, propelled themselves from the Berklee practice rooms to the national stage. John then went on to play guitar for The Lemonheads.  In short, he knows of what he speaks.

In this interview John focuses on actionable things artists can and should be doing to propel their careers forward.  What is resounding is the importance of being remarkable.  This is a theme I write about time and time again. If you pull the word “remarkable” apart you note that at its root is “remark;”people must “talk” about your work.

Of course, in order for that to happen, you must get your music out there.  TuneCore, of course, facilitates this, and I’ve written a lot about the importance of using the Lean Startup methodology of creating a “minimum viable product” to get a sense of what the market thinks of your work; again, TuneCore makes this process an incredibly efficient one.

So, balance John’s words of wisdom regarding making sure that your work is remarkable with the incredible ease of getting feedback via creating a minimum viable product, and distributing via TuneCore to constantly improve.

Take heed also regarding John’s advice when it comes to who you work with.  His thoughts here mirror many of the ideas I’ve discussed in articles like “Strengthen Your Core.”  It’s about alignment of values and expectations.  Of course, you can’t align your values with anyone else’s until you clearly know what your own values are.  This comes back to getting started.

There’s magic in motion. Moving your songs and ideas and aesthetic (values) from your brain/bedroom to a more tangible place—distro via TuneCore/playing shows—are necessary steps in understanding your values, becoming remarkable, and, generally, moving forward in your career in a manner that shows you have a plan, a vision, and a direction.

Watch this space for continued conversation with John. He’s got a lot more wisdom to share, and we’ll discuss things like when it’s time to get a lawyer, key legal details that every band should understand, and more.

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George Howard is the Executive Vice President of Wolfgang’s Vault. Wolfgang’s Vault is the parent company of Concert Vault, Paste Magazine, and Daytrotter. Mr. Howard is an Associate Professor of Management at Berklee College of Music

Amanda Palmer, Independent Musician

TuneCore has a number of amazing independent success stories—The Civil Wars’ two 2012 Grammy Awards, Alex Day’s “Forever Yours” hit #4 on the UK pop charts, Colt Ford’s Declaration of Independence achieved the #1 Country Record in the America,  J. Dash’s “Wop (Official Version)” is a certified Gold Record,…and the list goes on. Insight from these artists is something we want to offer to the TuneCore Community.

On September 11, Amanda Palmer—AFP to fans and friends—will release Theatre is Evil with TuneCore providing digital distribution. If you don’t know Amanda Palmer, you should because the successes of her career should serve as inspiration for many DIY performers. After a number of releases with her previous band The Dresden Dolls, as well as solo releases, Amanda chose a life without a record label. This decision seems to have only energized her efforts and popularity. Amanda is open with her fans, unflagging in her pursuits, and creative at her core. In response to our questions, Amanda discusses her approach to social media, suggestions for building a fan base, thoughts on her Kickstarter campaign, and offers both advice and calls to action for pursuing the life you want.

Was a career as a musician your personal goal?
Yes. I wanted to be a rock star from the time I was twelve. I gave myself no other option.

Was signing to a label one the goals of Dresden Dolls?
No. Signing to a label was never a goal in itself. But making music and not spending all of our time on the phone and on email was. I was managing the band and our label in the early days, and trying to do that on top of touring in a van was impossible. I just couldn’t handle all the work. So signing with a label was – mostly – a way to relieve that pressure.

 I have seen your quote “Nothing happens by accident” regarding your success. As your initial efforts were pre-twitter, Facebook, etc.. massive social networking, what would you recommend to young artists as keys to building your fan base outside of social networking?
Networking in PERSON. PLAYING SHOWS. HANGING OUT. Seriously: there’s nothing more depressing than thinking that a whole new crop of musicians are missing this point. The internet should be the tool, not the end point, for connection. Part of the reason I’m so close with my fans is that I always took the extra time to hang out after shows to talk, sign, gab, hug, listen, learn and connect after shows, even if it meant going to bed at 3 am instead of midnight when we had to wake up at 9 am to drive. You just DO IT. And you act like a person, not a diva. If the venue kicks you out, you all go outside. You don’t expect anybody to help you. You just GO. You talk to everyone who wants to talk to you, you spend your extra energy connecting with the fans, not drinking with the crew. After years and years, you start to understand that when you make that actual connection with people, you have a real relationship instead of a fairweather one.

Were there aspects of being on a label that were important your success?
Absolutely. Roadrunner really helped us achieve a presence in Europe and Australia. Had it not been for them, I may have never gotten over there with such ease. For that, I’m very grateful.

Famously, you raised over a million dollars from your fans, do you think the Dresden Dolls would have pursued being on a label if Kickstarter had existed when you were starting?”
Well, it was still possible to burn CDs and be independent back when we signed. The question would have been: WHO’S GOING TO DO ALL THIS WORK? Even if you have a successful Kickstarter, SOMEONE has to do all the office work, the fulfillment, the troubleshooting, the dealing with problems. So I’m not sure about that. Kickstarter isn’t a way to get known, it’s a marketplace. And back then, we would have seen a massive outpouring of support from our local fan base on the eastern seaboard, but we would’ve spent a huge amount of our time dealing with the logistics of keeping the business running. And I think this is a big problem for many musicians nowadays: HOW DO I GET ALL THIS SHIT DONE? It’s very, very hard without help. And you have that moment, sitting in your apartment surrounded by boxes of misprinted CDs that your fans were expecting in the mail two months ago, with an email inbox filled with 1,264 logistical questions and problems, and you shake your fist at the sky screaming “ALL I WANTED WAS TO PLAY GUITAR!!!!!” Finding the balance is…difficult.

You are in the process of releasing, distributing,  and promoting your upcoming release Theatre is Evil as an independent artist, what other members of your team have you assembled? And what are their roles to let your focus on your efforts?
My team is fantastic: I have a full-time personal assistant, Superkate, who helps me clean out and organize my moster email inbox, since I tend to get about 100 emails a day and when I’m traveling and touring, it’s impossible to keep up. My management at Girlie Action deal with the big broad strokes and connect all the publicists, agents, lawyers and general how-to of my day to day existence. They also helped me build, plan and time the release of the Kickstarter, and they keep me on task when it comes to messaging the fans with less personal information like tour dates. They’re also essentially functioning as my record label, since I’m effectively running my own little label with the release of this album. They help me partner up with distribution, they align campaigns and release dates, they literally work on the packaging and all the merchandise with me. They’re indispensable.

Online engagement with fans is a mantra from marketing sites. You do it as well as anyone. What do you find works and helps connect with existing fans, and create new ones?
Honestly…I think the biggest thing I do it I don’t think about it much. I just do it because I like it and I genuinely want to talk to the fans all day via twitter. I love to share. I love to blog. I love to connect, and I love involving everybody in the crazy circus. So I’m not very strategic about that. If I listened to advice from “marketing sites” that said “do this with your twitter, do that, don’t post more than x times a day, blah blah blah” I’d be lost. I do exactly what I want, and sometimes I post over 100 tweets in a day because a topic heats up. And people unfollow, and I just look at that as the cost of doing WHAT I WANT. And I think it’s that general attitude – that I’m using these tools however I want, and to have FUN, not because I’m trying to be clever about it – that keeps people with me.

(Photo Shervin Lainez)

Do you ever feel there is too much honesty or taboo subjects to discuss with your fans? Social is 24-7, do you turn it off sometimes?
I do. There are things I just wont’ discuss at all…no family or relationship drama allowed, no shit-talking other people or musicians, no work gossip. I definitely have my lines.

Are there any new apps, sites, or services that you recommend?
There’s an app for the Oblique Strategies cards for the iPhone now. I’m ecstatic.

In, June, the NY Times quoted your last album had sold 36,000 copies. Do you think this an accurate or valuable statistic anymore with streaming, single song downloads, etc…?
I think it’s probably “sold” four or five times that, at least, if you want to talk about people HAVING the record on their computers and listening to it. I STILL encourage people to avoid buying that one in shops. I’ve given my fans BLANKET permission to download anything.

What else is planned to promote Theatre is Evil? Touring? 
Oh, hell yes. We’ll be going on a tour that will last about a year, or more. The show is going to be an extravaganza…I’d recommend it. We’re going to be trying shit on stage nobody has ever tried before.

What other guidance can you provide to young cabaret punks, metal-heads, DJs, singer-songwriters, etc.. who are trying to succeed with their music?
I think the most important thing is this: why are you doing this? To be a star? To be famous? Or to connect with  people? If you keep asking yourself this question over and over, it’ll help.

It’ll also help when you’re playing in front of practically nobody, like, just the girlfriends of the shitty band you’re opening up for are watching….and you’re wondering what the hell the point of your life is.

If you really, really want to be a musician, chances are you probably won’t be rich. You won’t be famous. If you want it anyway, if you’re willing to just MAKE A LIVING, then you’re on the right track. And while you may never be celebrated and huge, you might stand a better chance of being happy, and as acting as a conduit for happiness for other people. This is the best thing about being an artist or musician. And that’s better than almost any other job out there.

Amanda Palmer Official Site 

Amanda Palmer Facebook 

Amanda Palmer Twitter