Never before have professional musicians and composers been faced with so much choice about how to get their music out into the world. The emergence of independent record presses, youtube, independent festivals, digital streaming services and internet radio all provide musicians and composers with new opportunities to take control of their music practice by reaching audiences independent from the music industry establishment. With the emergence of these new and innovative avenues for distribution comes an even greater necessity for musicians and composers to understand their legal rights and responsibilities so they are empowered to take charge of their business. Arts Law is uniquely placed to help Australian musicians and composers to do just this. We offer affordable, music-specific legal resources like contract templates, expert advice through our legal advice services, and a wealth of free information through our online Info Hub. Through our Pro Bono panel of lawyers, we also draw on the expertise of the best lawyers operating in the music industry today. With this Music Issue, we have gathered together some of our best resources, information and expert tips to help you take control of your music. -Robyn Ayres arts law gratefully acknowledges the financial assistance and investment of
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$7200
the that’s how much nal average professio s aussie muso take rom home each year f their music
as of march 2012, there were 32 legit digital music services in australia
each week, 6,300 gigs are played across the country
less than 1 % of musicians and composers in australia consider it a profession
State of play the aussie music industry today
just 7,900 aussies consider music their profession, compared with 60,000 registered with APRA AMCOS e consumers spend double th they amount on concert tickets as do on recorded music, making touring and live events more important than ever.
less than 200 musicians & composers earn more than $100,000 per year
in the last two years, revenue from the sale of vinyl has
increased 127%
88% of Australiaâ&#x20AC;&#x2122;s music & performing arts businesses are classified as micro businesses, wtih annual turnover <$200,000
stats via Artfacts by Australia Council; Aria and Music australia
4 things I wish I’d asked a lawyer… before I formed my band Ivan Vizintin is Arts Law’s paralegal, responsible for administering legal queries from artists and arts organisations. He’s also a professional musician. Here, Ivan and Arts Law’s Senior Solicitor, Morris Averill, discuss the issues he wish he’d known about when he was first starting out. The band just wrote a song… who owns what?
When it comes to crediting band members for their contributions in the writing process, there are no hard and fast rules. What is appropriate will depend on a variety of factors. For example, if the band is made up of four members, but only one member writes the music and the lyrics, it may be appropriate to attribute the band’s songs to that member entirely. Alternatively, the band may think that it is more equitable to split the songs equally, as every member is committed to the band and contributes in some way. How songs are “split” is entirely a matter for the band. The “splits” conversation can be a difficult one, but it should be had early on so that there is no confusion or animosity between members down the line. If you want to know more about working with co-writers, APRA/AMCOS has some useful info here.
Should we apply for an ABN? What’s this business structure thing about?
If your band is gigging and generating income, you should apply for an Australian Business Number (ABN). It’s quick and easy, and can be done online. You’ll need to include your ABN on your invoices. Before you apply for an ABN, it’s best to speak to a lawyer or accountant about how to “structure” your “business”. Frequently, a partnership structure is appropriate, but that’s not always the case. Different circumstances will call for different structures, and different structures give rise to different legal responsibilities. Arts Law has info on business structures here and band partnership agreements here.
Should we individually become members of APRA/AMCOS? What are the benefits? Yes, and you should register your songs with APRA AMCOS when they are released.
APRA AMCOS licence organisations (e.g. radio and TV) to play, perform, copy, record or make available your band’s music, and then they distribute the royalties to you. In other words: when your next hit song is making waves on the radio, you’ll be able to receive a royalty (and with the money, finally buy that guitar you’ve always wanted!) Read Arts Law’s info sheet on the topic here.
Do we need to retain an accountant?
For some, being in a band is a full-time pursuit, while for others, it is something to do with friends on the weekend. Whatever your situation, if the band is generating income, an accountant can help keep all of your finances in order, and guide you through your tax obligations when tax time comes around.
Choosing an online sales service ABC Triple J Unearthed Non-Exclusive Licence You grant to the ABC: • All rights to communicate the musical work and sound recording to the public - including that the ABC will allow users to listen to, reproduce and download and otherwise deal in the sound recording. The ABC has no liability to you for how the end user elects to use the sound recording. • ABC may use the sound recording for promotional purposes on both ABC platforms and external sites.
BandCamp Assignment or License
Rights
The ABC licences the public performance of the musical works through APRA|AMCOS.
Non-Exclusive Licence You grant Bandcamp: • The right to host the music you upload; • The right to stream and sell it on your behalf • Display whatever material you put on the website • The right to reproduce, distribute, perform, display and otherwise exploit the sound recordings, music videos and other materials uploaded to the website. • A royalty free license for public performance and communications You are responsible for ‘opting out’ or ‘licencing back’ your songs from APRA|AMCOS so that you can directly licence the public performance of your songs.
Indefinite. You can remove your music from the platform, but Triple J retains a copy & will continue to be entitled to exercise all rights in the sound recording.
The terms of the specific competition will describe what fees or benefits (if any) you receive from participating in the competition. The triple J upload agreement states you will not be paid any mechanical royalties from promotional downloads from the triple j unearthed website. You will receive public performance royalties from APRA if your music work is played on triple j radio or on the triple j unearthed digital radio station.
You may remove the sound recording at any time; however the ABC will retain a copy of the sound recording and will continue to be entitled to exercise all rights in the sound recording.
Duration
Bandcamp may terminate your access to all or any part of the Service at any time, with or without cause, with or without notice, effective immediately.
Fees & Royalties
The basic Bandcamp service is free. There are no signup costs or listing fees. Bandcamp deducts a revenue share on sales: 15% on digital sales and 10% on merchandising sales. The revenue share on digital sales drops from 15% to 10% when you reach US$5,000 in sales and you keep the discount provided you maintain sales of at least US$5,000 in the past 12 months.
Termination
Bandcamp may terminate your access to all or any part of the service at any time, with or without cause, with or without notice, effective immediately. Subscriptions to Bandcamp Pro can be cancelled at any time and the Bandcamp Pro services will continue for the duration of the monthly billing cycle for which you have already paid.
SoundCloud Non-Exclusive Licence You grant all rights required to sell: • reproduce • transmit • distribute You grant all rights required to distribute: • publicly display • publicly perform • make available to the public • communicate to the public
Valleyarm Digital Assignment or License
Rights
Exclusive Licence – digital distribution service You grant all rights required to: • Distribute your sound recordings to various retailers such as iTunes, Amazon, Google Play, Rhapsody etc • Sublicence your sound recordings • Sell your sound recording to consumers • Reproduce your sound recordings • Copy your sound recording into any digital format • Display whatever lyrics, trade marks, artwork and other material you put on the website
You are responsible for ‘opting out’ or ‘licencing back’ your songs from APRA|AMCOS so that you can directly licence the public performance of your songs
Licencing internet radio airplay, such as Spotify, will include the grant of the right to: • Communicate to the public using web-based performance (e.g., on-demand streaming or internet based ‘radio’) • Valleyarm licences the public performance of the musical works through APRA|AMCOS.
You may terminate the agreement at any time by sending written notice and by removing all of your content from your SoundCloud account
36 months, with a default setting to renew at the end of the 36 months.
SoundCloud currently does not offer any sales services. You pay an ongoing subscription fee to maintain your account: Pro and Pro Unlimited subscriptions. Pro will be offered at the price of €3 monthly and €9 monthly for Pro Unlimited. SoundCloud offers a Pro Partner subscription. The price for Pro Partner varies from partner to partner.
SoundCloud reserves the right to block, remove or delete any content at any time, and to limit or restrict access to any content, for any reason.
Duration
Fees & Royalties
Termination
You pay upload distribution set up fees: • Audio single or EP or Album: per single of AU$169 (exc. GST) • Music video: per music video of AU$199 (exc. GST) • Combined music video and audio album: per unit of $325 (exc. GST). You pay an annual fee for each release: • Audio single, EP or Album: AU$100 (exc. GST) • Music video: AU$149 AUD exc. GST (exc. GST) You receive 100% of net funds received from digital profits. If you generate more than AU$1,000 within a calendar quarter you will automatically commence a new 36 month term and be upgraded to a managed supported distribution service.
Agreement automatically renews at the end of 36 months. You may terminate the agreement at any time by paying AU$100 (ex GST), even if the time you decide to terminate is at the end of the 36 months. Valleyarm may terminate your account if you breach the terms and conditions. You may terminate the agreement after 36 months from the date of signing by giving Valleyarm written notice of your intention to terminate at least 30 days prior to the end of the term and by ceasing to use any and all parts of Valleyarm from that day.
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Better Ask a Lawyer
Q + A with Michael Easton Michael’s a lawyer with over 17 years experience in media, entertainment, commercial and intellectual property law. He previously worked for the ABC and now runs his own specialist practice. Before qualifying as a lawyer, he worked as a journalist and radio producer. In addition to working on film projects, music publishing and recording contracts, performer’s contracts and many other kinds of creative industry issues, he also helped to set up FBI Radio, of which he is now a life member. He is also a longtime member of Arts Law’s panel of lawyers who generously offer their services to artists for free.
Here’s a picture of Michael sealing the deal. Yep, we totally went there..... photo: supplied. used with permission.
q: What’s your background in the music industry? a: I’ve always been deeply into music - both listening and playing. Since starting out on euphonium in my primary school band, I’ve played trombone through high school, then bass guitar and acoustic bass in countless groups, combos, orchestras and bands ever since. I’m currently tackling the piano. Not sure that ability has matched enthusiasm in my case - but I love it all the same. My experience in the industry has been as a lawyer, working with bands, managers, venues, record labels, festivals etc over the last 17 years - across the full spectrum, from major artists such as Flume, the Preatures and Alex Lloyd, festivals like Homebake, through to bands that are just starting out.
q: What are some of the common issues that musicians come to you for advice on? a: Mainly, I am asked to advise on various contracts that have been presented to my clients: recording; publishing; management; band agreements; film commissions; distribution; licensing etc. I also get questions regarding copyright matters, such as the use of samples, and claims of infringement.
q: Can you tell us about your involvement with Arts Law? a: I have been on the panel since I started working in this area, and actually worked for the Arts Law Centre for a year or so back in 1998. I’ve also volunteered at other community legal centres, as well as local environmental groups and my kids’ schools. I feel that I have been very fortunate with the hand I’ve been dealt in life, and the opportunities that have been afforded me, so this is a way to give back. Also, I enjoy it!
Michael’s top tips for musicians Think carefully before you sign anything! It can be very difficult to ‘unsign’ you. Remember that success is not guaranteed just because you have signed an agreement.
Make sure you understand the agreement Ask for help if you don’t. In particular be very careful of any agreements that: • seek any assignment of copyright; • require exclusivity; • bind you for a long time; or • relinquish control to a third party to act on your behalf.
Ask lots of questions What are they offering you - what exactly are they committing to, monetary or otherwise? What will you receive for each unit sold? What happens if they don’t deliver? Is everything transparent?
Do your background research Who else have they worked with? Can you talk to anyone else who has worked with them? What comes up if you google them?
Do you really need their involvement? There are so many innovations now that allow bands to be self-sufficient and to manage their own careers. And the music business has exploded into a diversity of forms, providing young musicians with the possibility of multiple pathways to a satisfying career. If you’ve tried to do things yourself first, including (importantly) making your own mistakes, then you are in a much better position to assess what other people have to offer you and the promises they may make.
Finally... Take responsibility for your business - make sure you know what’s going on. How is your money being handled? Are you being paid?
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Downloading is out STREAMING IS IN
by Thomas Lynch
It’s a strange thought for most that that there are music consumers out there right now who have never purchased a physical album, whether it is the ever-durable CD, the stylish vinyl record or the “sorry, my Datsun only has a tape-deck” cassette. We now of course live in the age of digital music. Furthermore, we are currently witnessing the transition into an era where even downloading music will become obsolete, as the age of streaming is upon us. Services such as Spotify (arguably the most popular streaming service) and the newly introduced Apple Music are leading the way. Last year, global revenue from music downloads and subscriptions overtook sales of physical formats for the first time. A 2014 report revealed that digital sales of music (including downloads and streaming) accounted for $6.85 billion, while physical sales (of which CDs make up the vast majority) accounted for $6.82 billion.1 But how much of this money is actually going to artists, and how does it get there? How Online Streaming Works Streaming services collect money via a subscription model, although some services such as Spotify offer a free platform with advertisements.2 Every time somebody listens to a song on Spotify it generates payments, but Spotify does not calculate royalties based upon a fixed “per play” rate.3 Instead, Spotify pays royalties for all of the listening that occurs via their streaming service by distributing nearly 70% of all revenue back to rights holders.4 The “rights holders” are the owners of the music that is being streamed by services such as Spotify, whether they are labels, publishers, distributors, or, in some cases, independent artists themselves. The label or publisher then divides these royalties and accounts to each artist depending on their individual deals. The royalty that is paid to the rights holders depends on: • The country people are streaming the music; 1 IFPI Digital Music Report 2015, 6. 2 http://www.spotifyartists.com/spotify-explained/ 3 Ibid. 4 Ibid
• the streaming services number of paid users as a percentage of total users; (the more paid users that stream a particular song, then the higher the paid rate); • relative premium pricing and currency value in different countries; and • the rights holders’ royalty rate. Taylor Swift v Apple Music Thanks to a widely publicised rebellion by independent labels and Taylor Swift, Apple recently decided to pay artists and labels for the songs streamed during Apple Music’s three-month free trial period. Initially, Apple was not going to pay musicians any royalties for the first three months after its new streaming service launched.1 Following Spotify’s lead, Apple Music will also give rights holders over 70% of revenues after the three-month free trial period. While Apple has confirmed that artists would now be paid on a per-stream basis during the free trial, they did not specify how much that would be.2 But how much do musicians really make from online streaming? Although it varies from artist-to-artists depending on a wide variety of factors, payouts for individual artists have grown over time as a result of streaming-user growth.3 For example, Spotify says that its average payout for a stream to labels and publishers is between US$0.006 and $0.0084, although it has been calculated that the average payment to an artist from the label portion of that is $0.001128 – this being what a signed artist receives after the label’s share.4
1 Lucy England, ‘Here’s How Much Apple Music is Going to Pay Artists’ Business Insider Australia (22 June 2015) 2 Ibid. 3 IFPI Digital Music Report 2015, 6. 4 Stuart Dredge, ‘How Much Do Musicians Really Make from Spotify, iTunes and YouTube?’ The Guardian (3 April 2015).
Thomas Lynch graduated with a double degree in law and contemporary music from Southern Cross University in the Northern Rivers region. Thomas served as a volunteer at the Arts Law Centre of Australia between February and September 2015. He is now a paralegal at Clayton Utz, where he works in the Legal Technology Services team.
AITB on the Road: Bush Bands Business 2015 By Jacqueline Cornforth Bush Bands Business is an annual skills and industry development camp connecting leading Indigenous musicians and songwriters from central Australia with the music industry. Over three days, musicians and top industry professionals converge on Ross River, NT for workshops, rehearsals, networking opportunities and discussions. For the past five years, Arts Law has been travelling to the desert to mentor these musicians and spread the word about our Artists in the Black service.
Arts Law’s Delwyn Everard and Jacqueline Cornforth with D7’zBoys & E-Town Boyz (c) Arts Law.
The 2015 line up of artists were so talented and motivated to learn more about their artistry and acquire new skills to help define their sound and image. Tjintu Desert Band (Haasts Bluff and Ikuntji), Rayella (Marlinja Community), Desert Mulga (Nyirripi and Yuendemu), Creekside Reggae Band (Warakurna), Eastern Reggae (Santa Teresa), Iwantja (Injulkana) and the D7’zBoys & E-Town Boyz (Ampilatwatja/Elliott/Wutungurra) all participated. Arts Law’s Deputy Director, Delwyn Everard and I were on hand to host workshops on Copyright, Contracts and music law, and although the bands were focused on jamming and polishing their sets for the Bush Bands Bash, they took the time to learn more about how the law effects their work. The artists continually grow in confidence and gain fantastic knowledge because of this great initiative and it was wonderful to see them perform on the Saturday night at the Bush Bands Bash in front of thousands of people from their communities. The Indigenous music community is thriving with talented musicians waiting for the opportunity to tell their stories to the world. These artists can be found all over Australia, from the concrete urban city areas to the most remote communities. All are passionate about music and want the wider community to hear them. Arts Law and Artists in the Black will continue to support these artists in the future and hope to be a part of the Bush Bands Program for many years concert goers gather at the Bush Bands Bash. (c) Arts Law to come. Bush Bands Business is an initiative of Music NT. it is supported by organisations such as the Central Australian Aboriginal Media Association, APRA/AMCOS, Charles Darwin University, Country Arts WA and of course Arts Law and the Artists in the Black progam. Artists in the Black (AITB) is a legal service for Indigenous artists, communities and arts organisations. It was established by Arts Law in 2004 in response to the needs of the Indigenous arts community. AITB aims to: • Increase access for Indigenous artists, arts organisations and communities to legal advice on arts related issues, including Indigenous Cultural and Intellectual Property (ICIP) • Increase access to legal information about arts law issues and develop appropriate publications. • Increase understanding and awareness of Indigenous artists and communities of arts law issues through an education programme. • Provide informed advocacy work on ICIP issues and other arts law issues affecting the Indigenous community. • Develop arts–specific law expertise within the Indigenous community. Find out more here
Arts law music RESOURCES Contract Templates
Information Sheets
Arts Law has a whole range of useful template agreements you can purchase online. Once you’ve filled them out with relevant information, you can request a review from a lawyer through our Document Review Service.
Arts Law has a huge range of free information sheets on legal issues affecting musicians and composers.
Popular templates include • the Band Partnership Agreement • the Music Studio Agreement • the Session Musician’s Release • the One-Off Performance Partnership Deed
Popular info sheets include • Music Copyright and Publishing for Bands and Recording Artists • Copyright • Competition Conditions All the relevant info sheets for musicians can be accessed here.
Discover all the music contract templates here
other useful organisations • Australian Music Industry Network • APRA AMCOS • ARIA • MEAA • MUSIC NSW • MUSIC NT • MUSIC VICTORIA • PPCA • Q MUSIC • WAM • Australian Copyright Council
• Australia Council • Arts NSW • Creative Victoria • Arts Queensland • WA Culture & Arts • Arts Tasmania • NT Arts & Museums • Arts ACT • Arts SA • Regional Arts NSW • Regional Arts Victoria
The Music Issue aims to educate and inform Australian artists about legal issues affecting their arts practice. It does not constitute, and should not be relied on as, legal advice. Artists with legal issues should seek legal advice from a qualified lawyer such as the Arts Law Centre of Australia to address specific questions.
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