FROM THE DESK OF

FROM THE DESK OF... SHELLY HARRIS

UNRAVELING THE RED TAPE

by: Shelly Harris / Entertainment Attorney

QUESTION:

I write songs with two current bandmates, and there was another writer who used to be in our band that we've all written songs with, too. The songs that the ex-member wrote or co-wrote with our band sometimes get played on the radio and at clubs, at least locally. All members of the band, including the ex-member belong to ASCAP as songwriters, but so far we have not received any performance royalties, despite the airplay over the last two or three years. Can you suggest anything we can do to collect more royalties on our songs?

ANSWER:

First of all, the performing rights organizations monitor the types of airplay you are referring to only randomly, so, unless the songs are played very, very frequently on the radio, etc., it will be difficult for you to receive much in the way of royalties in that respect. You will also have to wait longer to receive royalties from you performance rights organization, since there is a margin of lag time before plays are actually paid out to the songwriters.

Notice I did say “songwriters.” I hope you realize that you must register with ASCAP as both a songwriter AND a publishing company in order to receive both halves of any performance royalties. You will get 50 percent of your share of any such royalties as a SONGWRITER (divide that 50 percent into thirds and just take one third of that, if you co-wrote it with two other people, for example). If you also register your own company for the publishing share, you will again take one third of the PUBLISHING royalties if you wrote the song with two other writers. In total, you would be taking in 1/3 Songwriter's royalties plus 1/3 the Publishing royalties, to finally collect 1/3 the total possible performance royalties. (Registering as a Songwriter only would only give you 1/6 the total possible royalties.)

However, if you have signed any management or recording deals involving songs or CDs, etc., it is possible that you may have contracted away all or part of the Publishing royalties you could garner on the performance royalties that could come in later for those songs.

So, if a manager contractually demands 50 percent of your band’s Publishing royalties (and many managers or record labels will demand that share) as part of his terms of employment, you and the other two writers would split (three ways) the remaining 50 percent of the Publishing royalties. (You could receive that 50 percent share of the Publishing royalties either into one joint publishing company or as individual publishing companies.) In that case, you would personally receive a total of one third the Songwriter’s royalties, and a total of one sixth of the Publishing royalties, for a total of one fourth the total performance royalty pie. (This would also only apply to songs that were included under the terms of the contract, not any new material recorded after an old contract has expired or failed to be renewed.)

Remember though, that there are several ways to split performance royalties, and that there are also several other types of royalties, such as mechanical royalties (which you receive if anyone else records a song that you have written or co-written), royalties received (usually as a band rather than as songwriters) from record companies prorated at an amount per each unit (CD) sold, and royalties or flat fees for songs used in commercials, or used on the TV or movies in conjunction with visuals.

The latter are types of licensing agreements, and more details about those types of songwriting/performance royalties will be discussed in my next column!

Email your entertainment business questions and comments to Shelly at: shellyharrislaw@aol.com

[Note: Names are always changed in these Q & A’s. It is always in your best interest to consult an attorney of your choice directly regarding any particular legal issue or problem you might have.]

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