Copyright and the Jazz Musician

In an art form based on reinterpretation, instant composition, and group interplay, how do you determine who owns what and how much they get paid for it?

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For Lafayette Gilchrist, assigning ownership rights to a piece of music is a matter of integrity. Photograph: J.M. Giordano.

In late August, the pianist Lafayette Gilchrist was recovering from a week-long stint in Kaliningrad, Russia, the city that hosted the 2018 FIFA World Cup. He had performed at a jazz festival alongside saxophonist David Murray, drummer Hamid Drake, and bassist Jaribu Shahid, which amounted to a reunion of Murray’s Black Saint Quartet. At home, Gilchrist leads his own group, the New Volcanoes, and was about to release an aural collage of jazz, blues, and funk on a five-track EP titled Deep Dancing Suite. A longtime Baltimore resident, Gilchrist is also a prolific composer who’s written for TV series like The Wire, The Deuce, and Treme, and who recently completed “a bunch” of compositions with New Volcanoes percussionist Kevin Pinder. The next item on his lengthy to-do list? Registering the copyright on those compositions with the performance rights organization (PRO) to which he belongs, Broadcast Music, Inc., or BMI for short.

Performance rights come into play when a piece of music is heard in live performances, streamed online, or aired on the radio. If that piece of music is yours, and if you’ve registered the given work with a PRO, thereby establishing that you hold the copyright on it, you are entitled to royalties. That’s why Gilchrist was so eager to register his newly created tunes: because there’s potential money to be made from doing so. In today’s fragmented environment for consuming music, establishing copyright has become more and more important to an artist’s financial success. However, doing it fairly is not always easy, especially in jazz.

For most bandleaders, assigning ownership is usually a straightforward endeavor. For example, when Gilchrist is playing David Murray’s compositions, the copyright belongs to Murray, and when his own compositions are played by the New Volcanoes, the rights belong to Gilchrist. But unless musicians have a prearranged agreement, things can get murky when a kernel of an idea by one band member is fully developed with ideas from the rest of the group. In such cases, Gilchrist takes a weighted approach in which rights go to the member who was the principal driver of the song. “Whoever is integral to the creation of the essential elements of the composition and the spiritual feeling of the piece, whoever is involved in that process, we just split it,” he said. “That’s how I’ve always done it.”

Assigning ownership rights is a matter of personal integrity for Gilchrist: “That involves honor and your word, and how you’re going to relate to other human beings and share the resources that you both put your sweat and labor into.” But although honor is certainly laudable, for David Sholemson of the Kurland Agency—which manages guitarist Pat Metheny, among others—nothing beats a carefully considered agreement. He insists the best practice is to decide how copyright will be established long before the playing starts. This should include a written understanding that the creative process may produce unexpected scenarios, and that such developments will be mutually resolved. “Some artists may get upset with that,” Sholemson said. “You get into the ‘you don’t trust me’ mode. But that piece of paper, in my experience, allows the artists to just write and know how things will be.”

“Some artists may get upset [about having to create a copyright agreement]. You get into the ‘you don’t trust me’ mode. But that piece of paper, in my experience, allows the artists to just write and know how things will be.”—David Sholemson, the Kurland Agency

 

A failure by artists to fully work through copyright issues and how their music will be used can lead to costly results, said Don Gorder, chair and founder of the music business/management department at Berklee College of Music in Boston. He recalled that the surviving members of the iconic rock band the Doors forfeited a hefty payday when the group couldn’t agree on whether their music could be used in advertising. Rolling Stone reported that in 2003, Cadillac pitched them a $15 million deal. Guitarist Robby Krieger and keyboardist Ray Manzarek were all in, but drummer John Densmore wanted no part of it, holding true to the late vocalist Jim Morrison’s opposition to commercial use of the Doors’ music.

For Gorder and his students, this presents a cautionary tale of the pitfalls of poor planning and foresight. Some bands are also unaware that if no agreement is made on copyright issues, the law mandates that each group member gets an equal share of the proceeds: “You have the guy who says, ‘That bassline is mine.’ And someone else says, ‘I contributed these two measures.’ If there’s no agreement, the royalties are split evenly.” Gorder, an active trumpet player and attorney who has represented clients in copyright and contract issues, added that agreements crafted by well-organized bands not only address how shares of their music will be divided but also clarify issues such as ownership of the group’s name and recordings.

Don Gorder, chair and founder of Berklee's music business/management department
Don Gorder, chair and founder of Berklee’s music business/management department, has represented clients as an attorney in copyright-related cases.

 

Not Just One Right Answer
BMI isn’t the only PRO around. The American Society of Composers, Authors and Publishers (ASCAP) is the other major one in the U.S., with two more—the Society of European Stage Authors and Composers (SESAC) and Global Music Rights—taking prominence elsewhere in the world. To get paid performance royalties, all artists must align themselves with one of these organizations and can only have one membership at a time. When more than one artist is responsible for the creation of a song, the royalties are split among the writers, evenly unless otherwise specified. If artists don’t register a song (or their share of one), then the PROs won’t be able to accurately pay royalties.

At the New School in New York, there’s a heavy emphasis on getting students prepped for the recent shifts in music distribution, and for how these changes will affect their income. “This is always an open topic of discussion,” said Keller Coker, dean of the School of Jazz and Contemporary Music. “People want to know, ‘What will I get paid for my contribution?’” The school has responded to this need for music-biz knowledge by creating a five-year program that combines an undergraduate degree with a master’s in arts management and entrepreneurship. Coker, a trombonist who has arranged music for vocalist Kurt Elling, trumpeter Cuong Vu, saxophonist Joe Lovano, and R&B/pop singer Martha Reeves, said that when students ask him for advice, he tells them to think of themselves as their own business entity, and that the first member of their team, when they can afford it, should be an accountant.

Beyond getting ownership of the music right, Coker explained that there are two different types of copyrights in recorded music that make money for musicians, writers, and record companies in different ways. In addition to the performance right illustrated by Gilchrist’s new compositions, there is a separate master right—the right to the actual recording of the music—that’s generally owned by a record company, unless the artists in question released the recording themselves. A large royalty stream for this copyright flows from the use of music in visual media such as movies, TV shows, and commercials, where both the writer and the owner of the recording are compensated. Payments in the form of so-called mechanical royalties—originally tied to the sale of player piano rolls and later to the sale of records, tapes, and CDs—now include digital formats, and are paid to writers and recording artists.

In 2013, the National Music Publishers Association said that while the U.S. music publishing industry was valued at $2.2 billion, an estimated $2.3 billion is lost every year due to outdated copyright law and government regulations.

 

The Mechanics of Payment
Songwriters also make money from mechanical royalties when recording artists produce covers of their tunes. For instance, in 1958, Miles Davis recorded a version of Cole Porter’s ballad “Love for Sale.” This triggered a payment by Davis’ record company to the Cole Porter estate, which owns the rights to the song. Payments of this sort are largely collected by the Harry Fox Agency of New York, which then distributes the money to its songwriter clients, such as the Porter estate. The statutory mechanical royalty rate per copy of a physical recording or permanent digital download is set by Congress each year. Currently, it’s 9.1 cents for recordings of a song five minutes or less, and 1.75 cents per minute for those over five minutes.

Given how copyrights work and the varied methods for collection and distribution of royalties, it’s extremely difficult for artists to know if they’re getting all the payments they’ve earned. “Almost no one does an audit of this,” Coker said. Record companies do get audited on the royalties paid to artists from music sales, while PROs ask for daily playlists from radio stations and distribute the royalties accordingly; clubs that feature live and recorded music are also on the hook for music fees. Still, the number of ways in which music is now consumed by the public makes following the money trail with absolute accuracy nearly impossible. As Coker put it, “You have to trust ASCAP and BMI.”

In response, those two PROs both issued statements to JazzTimes. BMI’s said that it “processes literally trillions of transactions every year and last year distributed over a billion dollars to its affiliated songwriters, composers, and music publishers, a first for any performing rights organization. Since 1939, BMI has operated with an open-door policy and has tracked performances and paid royalties to thousands of composers in the jazz genre. More than 55 percent of the NEA Jazz Masters Honor Roll are BMI affiliates, including Pat Metheny, Sonny Rollins, Chick Corea, and the late Charlie Haden, to name a few. Other notable BMI-affiliated jazz composers include Terri Lyne Carrington, Carla Bley, Herbie Hancock, and the late Miles Davis.”

ASCAP, meanwhile, stated that it “belongs to its members—we are member-owned and governed. Our main role is to ensure that our members are fairly compensated when their music is performed in public. We operate on a non-profit basis with about 88 cents of every dollar collected going back to our members. Last year, for the first time, ASCAP distributed more than $1 billion in royalties to our members. ASCAP uses a ‘follow the dollar’ principle, i.e., the fees we get from TV networks go to TV music creators, the fees we get from streaming services compensate performances on streaming services, and so on.”

Patrice Rushen
Patrice Rushen doesn’t believe the current system of royalty distribution for music copyright holders is working well.

Does the System Work?
Four-time Grammy nominee Patrice Rushen is skeptical about the new payment streams that have arisen with the advent of downloads and streaming. “There isn’t a situation I can point to right now where everybody feels totally confident that they are receiving their fair share,” said Rushen, chair of the popular music program at the University of Southern California’s Thornton School of Music in Los Angeles. Rushen, a pianist, has produced and performed with Stevie Wonder, Herbie Hancock, and Prince, among others, and she isn’t alone in her concerns about royalties. In 2013, the National Music Publishers Association said that while the U.S. music publishing industry was valued at $2.2 billion, an estimated $2.3 billion is lost every year due to outdated copyright law and government regulations. In 2017, the group said revenue rose to $2.96 billion, but didn’t calculate a recent figure on losses related to copyright laws and regulation.

In the 1980s, Rushen topped the pop, R&B, and dance charts with the single “Forget Me Nots.” The song is still in rotation on urban-contemporary radio stations across the country, but she isn’t confident that she’s getting compensated each time her song is consumed by the public. In the past, she could sit with record company execs and an accountant and review record sales and radio station logs. Now, in the absence of concrete measures, she thinks some income has fallen through the cracks: “I can’t call and say, ‘How many downloads were there?’ because there are so many legitimate and illegitimate ways to get the music.”

Despite her misgivings, Rushen hasn’t soured on the music industry. She’s hopeful about the creative possibilities that arise when a new generation of artists arrives on the scene. Students who pursue music careers, she said, now understand better than ever before that they may not get rich from it, but they invest in their craft and love what they’re doing nonetheless: “It means they will push the envelope in terms of what’s possible, relevant, and creative, drawing from certain traditions, and move the music forward.” While still making sure to register those copyrights.