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It depends on the specific terms of the individual library’s contract.
I do not have music in any non-exclusive re-titling libraries. So, I cannot comment on the terms of their contracts.
My music is either in exclusive libraries, where I was paid up front, or in libraries where I own the publishing. I do not shop the music that is in exclusive libraries. I’m free to do what I want with music that I publish and/or own 100%.
I don’t know anything about PRS. ASCAP and BMI do not like to “look back.”
You should also contact Pond5. The person using your music is violating Pond5’s licensing agreement, by selling it as their own.
Yes,very illegal!.
You need to get an attorney involved to send a cease and desist letter. If you had registered the track with your PRO, you could notify them of the infringement, as well.
I would contact iTunes and Amazon and tell them to take it down. Also try contacting Pond5. Whoever purchased the track is violating Pond5’s licensing agreement.
Good luck.
Sorry it was late….
This sentence should read:
“It does not tell the your PRO where, when or how many times the program aired.”
@Jay …a cue sheet is filed by the production company. It only tells your PRO that a particular piece of music was used, and how much was used, in a particular program. It does not the your PRO where, when or how many times the program aired. The PROs get that data with other methods, including surveys. In some cases, they use third party data. It sounds like your PRO received the cue sheet, but that the performance wasn’t picked up in their survey. It is not uncommon for this to happen, particularly with non-network programming, like cable, or syndicated programming.
@Exclusive, I’m going to give you a standard lawyer answer…”it depends.”
There is no single definition, like a statute, that defines the meaning of exclusive in the context to which your are referring. What is meant by exclusive may differ from library to library. The term should be defined in the library’s contract. If not, you should ask for clarification.
The fundamental issue is whether you are granting exclusivity to the sound recording or to the underlying composition. This is the kind of thing that lawyers will argue about until hell freezes over.
My personal opinion is that you are granting a time-limited exclusive license in the sound recording. That said, it is also my personal opinion that alternate mixes are not enough to constitute an new track that could be licensed freely elsewhere, because they are derived from the sound recording.
On the other hand, in this vague twilight world, in which “libraries” are actually licensing agents, not paying for your work, and no transfer of copyright occurs, alternate arrangements/orchestrations may be fair game, if they completely change the character of the work, in this case the sound recording. For example, if I wrote a classical style string quartet and put it “exclusively” into a no-money upfront library, I wouldn’t think twice about putting a dubstep arrangement of the same composition elsewhere.
You should:
1) ask the library and,
2) have your lawyer read the contract
Cheers,
Michael
@Kiwi..double check with your lawyer AND your accountant. Like an LLC, an “S Corp” in not an actual corporation. It is a tax accounting designation.
An LLC is is flexible in that you choose your tax structure. You can elect to be taxed as a C corp, or an S corp, or even as a sole proprietorship. There is little or no difference with respect to the “pass through” nature if you elect S corp or single member disregarded entity (basically a sole proprietorship)
Pass through accounting is good if you experience a loss on paper, because it lowers your personal income tax. S corps are good if you are in a situation with high self-employment taxes. But, if you have a lot of passive income, like royalties, you could actually be increasing your taxes with an S corp.
Given that you can simply elect for your LLC to be taxed as an S corp, I’m not sure why you would want to “fold your LLC into an S corp” later.
With respect to “limited” liability: almost all state statutes and case law have exceptions which provide for liability of an LLC member or corporate shareholder. This is especially true when the company is closely held. Under these circumstances, the company is often considered and alter ego of the member or shareholder. This rule is known as the identity rule. Where you have the greatest protection is with respect to company debt, as long as you have not secured the debt with personal assets.
With respect to the tortious (wrongful) conduct of the member or shareholder, for example copyright infringement, it may be very easy to pierce the veil to reach personal assets, especially in a single-member LLC / S corp.
Anyone considering forming an LLC or corporation should thoroughly discuss the idea with their attorney and accountant. Be realistic about about your potential income, so you don’t go for overkill. Explain to your lawyer what kind of liability you are concerned about, i.e., debt, someone falling down your studio steps, or getting sued for copyright infringement. Neither an LLC nor incorporation is a magic shield that will protect you in all situations.
@Steve using LLC or Inc. would be fraud if it was used to intentionally mislead, like to apply for a loan. But, because banks require documentation, i.e, showing corporate ID, date and state of incorporation etc., they would most likely spot the fraud quickly. When you form a publishing company, both ASCAP and BMI require copies of your articles of incorporation, or a certificate of organization for an LLC. Interestingly, states do not require a business to display Inc., or LLC as part of its logo, just on official documents.
I have an LLC. I did not want to incorporate because having a corporation, even if it’s an “S” corp is a PITA. As you mentioned, it means double taxes, which means a second tax return (more money for your accountant), and other complicated things.
I formed the LLC for a number of reasons. I am involved in a publishing joint venture with another company. Together we have our own library. I have two other publishing entities and my composing entity. All of these are divisions of the LLC. Plus, I also publish other writers’ works. When things started to grow beyond just me writing cues, it made sense to go beyond sole proprietor.
An LLC is NOT, repeat is NOT, a corporation, nor is it a form of incorporation. It is a Limited Liability Company.
@Steve, you are correct about getting taxed twice if you incorporate. Tax flexibility is one of the reasons people form LLC’s. You can elect your tax status.However, if you are a single member LLC, or if it’s you and your spouse, the IRS considers the LLC a disregarded entity. The LLC’s taxes are basically filed as a schedule on your personal return. You can deduct the LLC’s expenses from your personal income.
As far as protection goes, with respect to LLC’s and corporations, it’s a bit of a myth the smaller you are, and either way only offers protection in certain scenarios. You cannot protect yourself from liability for your own negligence or criminal acts by being a corporation or an LLC. I “pierced the corporate veil” many times to sue people who thought that they were protected.
On the other hand, if you borrow money, or have credit cards in the name of the LLC or corporation, you are shielded from liability if the company goes bankrupt AS LONG AS, you did not pledge personal assets. For example, you go to a bank to get a business loan for your LLC, and the bank requires you to use your house to secure the loan. If the LLC goes bankrupt, the bank can go after your house. The LLC will not protect you.
My state dos not charge an annual fee for LLC’s, unless you are a licensed professional, i.e, lawyer, doctor, etc. So, when I had a law firm, we paid an annual fee. Now that I just have a music business the is no fee. 🙂 Other states may differ.
@John, you can try the LegalZoom route, if you wish, although that may not be available in your state. I’d prefer dealing with an individual (but hey I’m biased).Does that help?
This is beginning to sound like a lot of people wandering around a casino wondering which slot machines are the “luckiest” and payout the best.
“Hope and optimism are always good virtues. The industry, however, is saturated.”
I disagree to a point.
If you subtract the music that has no commercial viability, i.e. sync potential, and the music that has bad, little, or no metadata, you narrow the field quite a bit.
Writers can’t just throw anything out there and “hope” that someone will license it. The music has to be functional. Too many writers are, as an ad agency friend of mine used to say, “talking to themselves.”
Ian…
I think you mean simplistic advice. If someone has an individual style, but writes electronica, exactly which “real performers” would you have them hire? I’ve already pointed out Zack Hemsey’s “Mind Heist” as a cue done with samples in his apartment that will make him nearly 7 figures.
I recently got paid the equivalent of a few hundred “placements” to produce an orchestral collection for an exclusive library…using samples. Samples only get better every day. You are simply missing the boat.
But…the real issue here, is that your “advice” isn’t particularly relevant to a discussion of the Jingle Punks business model.
First, I’m going to guess that you are from the UK. Feel free to correct me if I’m wrong. The library business is a world unto itself over there. You have different aesthetics, are governed by different rules and regulations AND real performers are a lot less expensive.
Now let’s look at the big picture.
1) The vast majority of writers on this forum are not professional composers. They barely make enough money to justify continuing. How, and why, do you expect them to hire “real performers?”
2) Many of the writers here are “artists” who write “songs.” They are in the licensing business, not the library business, as you most likely think of it, e.g. the KPM world.
3) It is nearly impossible for 99% of writers to get into a library that will pay for production costs.
4) Please tell us an area where the use of samples and/or hybrid orchestration doesn’t dominate? Please don’t say BBC documentaries.
5) The libraries themselves often ask for music that “sounds like.” How do you suggest that a writer develop his/her individual style when the mass market demands imitation rather than innovation?
6) Many professional writers throw cues into this arena (mass market) to generate another revenue stream.
Perhaps you have a skill set and greater financial resources than the writers whom you believe are “going about it all wrong.” Kudos to you. Be grateful, but please don’t look down on others for trying.
@Greg the article that you linked from FMM says the following:
“1. Work with some qualified music attorneys familiar with film and television work to develop some standard contract language to cover these areas and provide reasonable, fair royalties for composers in these circumstances.”
Unfortunately, Scott was never part of any contract negotiations with the producer. His intellectual property was given away, and his right to control the public performance of his works denied because of his deal with JP.
The real question, then, is was it worth it? Has Scott made enough money from other placements of THAT piece of music to cover his loss of royalties from this transaction? If not, he essentially gave away his property rights and the only winners are JP and the DVD producer. Reminds me of the story of Jack and the Beanstalk. As long as composers are willing sell the “cow” for a handful of beans, you can expect uncompensated placements to be commonplace.
PROs do not collect mechanical royalties.
@Kiwi, I agree. Whether “crowd sourcing” ala JP is professional pursuit is debatable, and I agree with respect to name calling.
I was, however, referring to one’s conduct in business in general (which btw includes name calling.. good call on the apology Advice), not specifically submitting to JP. There are unwritten rules that you learn over time…a long time.
What I’ve observed, over the past few decades, is that the most successful composers are the ones who get it…who understand that this is a business and all that entails.