You May Be Young… Not For Long

While on a Sunday cruising down I-87, keeping abreast of developments in modern pop music, I was comparing by the track “We are Young” by Fun featuring Janelle Monáe to that of “What Makes You Beautiful” by the Cowellian outfit One Direction. Both, in their own way, fabulous pop songs, the latter being a decent, catchy summer tune that makes body dysmorphic teenage girls feeel that they have a chance with the captain of their football team. The “We Are Young” however is an anthemic power ballad, that one can envisage being played at practically every graduation from here to eternity.
The major difference in their long-term revenue streams, if it has not already become apparent, is the personnel who wrote each song, which will indicate who will benefit or profit. “What Makes You Beautiful” is the product of an industry powerhouse: Savan Kotecha (writer for multiple Cowell prodigies), Carl Falk (infamous for writing “Disconnected” performed by Lindsay Lohan and Rami Yacoub (producer of “Hit Me Baby One more Time”)). Whereas “We Are Young” was written and composed by Nate Ruess, Andrew Dost, and Jack Antonoff all part of Fun.
“What Makes You Beautiful” will have massive income generation for a short period and then will provide modest royalties for a few a years as it becomes a filler on “Now 564” or “Greatest Forgotten hits of the ‘10’s.” “We are Young” is likely to become the pension plan for Messrs. Ruess et al. That is, if they have not signed all of their rights away.
One of the main pitfalls that young artists face, is that they have invested their hearts, souls and barmitzvah funds into their careers. However, when the labels come knocking they don’t tell the bright-eyed youngster that sales of records do not make that much and neither does airplay nowadays. The only way that a young singer can start to make a living is by also being the writer or composer of any given track, so when writing teams are being offered, that is when the indenture of the newly discovered artist begins. Also, when it dawns on the group’s charismatic front man that the keyboard player may not have all the chicks now but he is earning 50% of the royalties, that is when splits usually happen.
We get to see a whole range of situations that are genuinely staggering and most of them stem from bad management, where an artist was ‘discovered’ by somebody with limited experience in the business, who throw a little money at them and entices them to sign an onerous agreement. Locked in, the manager either only targets major labels as he is seeking the big score while the artist has been denied access to the management or publishing boutiques with excellent reputations.
Like every good lawyer should, we advise any aspiring artist to seek advice from an attorney before signing anything, that is a given. More often, however, the artist does not have access to the best legal advice unless luck strikes and the Faustian pact was struck long ago. So what can the artist do? One novel approach is to ask the prospective manager to pay for for independent legal advice (i.e. do not go to anyone suggested by the manager). Also, the newcome must read, not just blogs but also books like “This Business of Music.”
Then they might know not to make the schooboy error of agreeing to sell music as a “work for hire”, without knowing that the work will no longer be considered as theirs, and the artist will not be entitled to any copyright whatsoever.

Other rights that record companies often try to get artists to sign away is their termination rights, which are the rights to claim back the copyright they granted to a label after a period of 35 years, upon notice. Even the experienced artists, who made the mistake in their early career is so beaten down and used to people taking advantae that they don’t know that such contracts, which include automatic waiver of termination rights are usually void. Empowerment of the artist by giving back termination rights was one of the main objectives of the Copyright Act 1977.

Not all is bad, the record labels are in a very risky business and there is no doubt that the industry has changed over the last few year and they are certainly entitled to recoup heir investment plus some upside. However, that does not mean that the artist has no bargaining power, especially in terms of royalties.

So … the cardinal rule that any person in the music busines should live by, if your manager wants a portion of your copyright … run.

Robert Garson
rg@gs2law.com