Advice Needed On "adaptations"

[carolsokoloff]

Can anyone offer some advice based on experience...

I have written lyrics to a well-known jazz instrumental, and hope to release it on my upcoming debut CD (I'm a vocalist and songwriter).

I was very pleased to have the composer accept my work as an official adaptation.... however, his mus. publisher (a huge one) has sent contracts which deny me any share of royalties on the adaptation...

entertainment lawyers advise against signing, but the publisher does not seem inclined to negotiate one iota...

I do not necessarily want to hire a high-priced lawyer if there is no hope of negotiating a better deal...

on the other hand I am very reluctant to agree to the offered terms, where I lose all rights and earnings on my lyric...

does anyone have any experience with these matters, or suggestions,

I'd be grateful,

carol s.

[FinnArild]

I believe it is in the publishers rights to dictate the terms of the adaptation - so it is really down to whether you believe this will benefit the royalties of your album as whole. Also remember that you nevertheless are entitled to the revenue of the mechanical rights. http://en.wikipedia.org/wiki/Royalties#Mechanical_royalties

My gut feeling is that you should accept.

[Lazz]

It seems to me first that it falls clearly within the composer's moral rights to decide whether your use is acceptable or not.

And moral rights can never be sold or transferred - they remain with the creator - nothing to do with the publisher.

So it seems to me secondly that the publisher is just trying it on as a matter of course.

My immediate personal response would be to tell them to bugger off.

I presume you are a SOCAN member - so give Terry a call (1-800-937-6226), run the situation by him, and see what he has to say.

But I really don't think you ever need a high priced lawyer to argue and negotiate on your behalf about something with as little return and reward as one single track on a small-time jazz CD that we can probably guarantee won't recoup recording and manufacturing costs. That simply wouldn't make any sense, would it ?

Besides, you already have the advice of entertainment lawyers - "don't sign".

Good advice, I think.

What's the name of the tune?

.

[carolsokoloff]

hi Lazz (hope that's right),

thanks for the reply... (I know and enjoy your work with Pat Coleman, by the way)

the song is Footprints (Wayne Shorter)

I have talked to Terry and his opinion is: consider it an honour that your lyric has been accepted... what if everyone decided to write new lyrics to Beatles tunes.. don't expect any royalties (kind of an odd perspective for a rights organization...)

I really don't care that much, but song might get recorded by others, picked up for movies etc... everyone would make something except the lyricist... I just don't feel good about signing that kind of a contract... also ties that lyric irrevocably to that song...

and I lose control over it... must get permission to use it etc.

publisher is suggesting that if I do not sign this contract I cannot release the tune...

I don't seem to be getting very far negotiating on my own... it's a take it or leave it offer... I'm told.

do appreciate your thoughts....

carol

It seems to me first that it falls clearly within the composer's moral rights to decide whether your use is acceptable or not.

And moral rights can never be sold or transferred - they remain with the creator - nothing to do with the publisher.

So it seems to me secondly that the publisher is just trying it on as a matter of course.

My immediate personal response would be to tell them to bugger off.

I presume you are a SOCAN member - so give Terry a call (1-800-937-6226), run the situation by him, and see what he has to say.

But I really don't think you ever need a high priced lawyer to argue and negotiate on your behalf about something with as little return and reward as one single track on a small-time jazz CD that we can probably guarantee won't recoup recording and manufacturing costs. That simply wouldn't make any sense, would it ?

Besides, you already have the advice of entertainment lawyers - "don't sign".

Good advice, I think.

What's the name of the tune?

.

[Lazz]

I have talked to Terry and his opinion is: consider it an honour that your lyric has been accepted... what if everyone decided to write new lyrics to Beatles tunes.. don't expect any royalties (kind of an odd perspective for a rights organization...)

What a strange and totally irrelevant thing for him to say: I mean, I would consider it an honour to have the spaceman accept my lyrics also, but I don't see where the Beatles come into it. A stupid comparison offering no illumination. New lyrics would require permission from the composer - which seems highly unlikely in the case of the Beatles - whereas Wayne has given you the ok - which is all you need. The publisher does not own those moral rights, and can't own those moral rights, all they own are the economic rights, so as long as they get paid for use they have no complaint.

I know plenty of people who have recorded Shorter tunes and none have been required to seek permission or sign a contract. All they do is pay the mechanicals and get it pressed. We have to pay those mechanicals before the manufacturer will process your order anyway. So that's what you do. Pay the rights holder 50% for use of the composition via CMRRA, and mark yourself down nominally and rightfully as lyricist for the other half. As far as I can see, you need no further communication with the publisher. You certainly don't need a contract with them.

publisher is suggesting that if I do not sign this contract I cannot release the tune...

I don't seem to be getting very far negotiating on my own... it's a take it or leave it offer... I'm told.

I take note of the fact that you say they have suggested this - which suggests to me they may not have come right out and overtly stated it as fact. Now, I am not clear on where US law stands on such matters but, in the jurisdiction with which I have the greatest familiarity, attempts to explicitly mislead a person about what the law is may constitute a criminal offence. So maybe that explains why it's a suggestion rather than a simple statement of fact. But I think they're just trying to muscle you with the usual music business goal of having the rights to everything, everywhere, forever.

What I would do is just go ahead legitimately as above and ignore the publisher to death.

I can't imagine they would have the time to waste on small stuff as long as they've been paid.

And if they're dumb enough to make a fuss - then milk the controversy for all the publicity you can get.

I don't know if they have any expertise in these areas at U.Vic, but the only other person I know of who may be willing to give you a straight, authoritative, and qualified legal reading is Michael Geist.

You could write to him at the University of Ottawa's Faculty of Law.

I won't publish it openly here, but his e-mail isn't at all difficult to find.

.

[carolsokoloff]

once again - thank you....

that's a very interesting point of view... re. the moral rights...

I should mention that it is the publisher's rep who acted as a conduit and secured the Wayne Shorter acceptance of two adaptations. From her letter:

"If you feel you cannot sign these agreements, than please note that you may not under any circumstance release these songs, as it would be copyright infringement. "

I guess you could say that is more than a suggestion....

thank you for the referral of Michael Geist. I am not familiar with him... but perhaps I can send a brief email...

my personal email is: casjazz@islandnet.com

if you want to send me his address... or I can track him through the U. of Ottawa...

if you send me your email I will send you more of the letter from the music publisher..... it's kind of a weird scenario... trying to figure out the next step..

carol

[Lazz]

Oh right.... I was wondering how the publisher got involved in the first place.

I'll send you an e-mail.

I'm happy and complimented that you enjoy our work.

We think your drummer, Kelby MacNayr, is very special indeed.

Maybe if the Shorter falls flat on its back you might consider doing a Coleman-Lazzerini tune instead.

We'll get my people to talk to your people.

.

[thepopeofpop]

My advice is that you should immediately copyright the lyrics as a separate work. Use a different title for the lyrics - do the lyrics quote the title of the instrument piece? That could be tricky - if your work is too obviously derivative of the original piece you could run into problems trying to establish your work as an original work.

Registering your lyrics with the Copyright Office would be the best way to safeguard your interests should the combined work (music and lyrics) be recorded by other artists in the future.

The reason why the publishing company is trying to deny you any royalties is to safeguard their interests should your "new" version become popular. They don't want to end up in a situation like this:

http://cip.law.ucla.edu/cases/case_tempofamous.html

In other words, they don't want you to ever have a claim over the instrumental.

However, since they did not hire you to write the lyrics, they don't have a moral right in denying you an equal share of the royalties. Also, you are not replacing the existing lyrics of an existing song - you are writing a new element that did not previously exist. This isn't something presumptuous like writing new lyrics to a Beatles song!

They do have the right to not allow you to attach your lyrics to the music they publish, but they don't have the right to say "yes, we'd like to use your lyrics to create a derivative work, but you won't get paid for it". If your lyrics are good enough to be used, then you deserve a share.

That being said, they are in a strong position. You can't use the music without their permission. Of course, you could always find different music that fits your lyrics and hope for a friendlier publisher!

If you have your heart set on using this particular piece of music. You may need to haggle. Perhaps you can get some percentage, just not 50% -

Edited August 29, 2010 by thepopeofpop

[carolsokoloff]

Dear Pope,

Thank you for your advice... (advice form the Pope!!)

the lyrics are copyrighted as a separate work.. with a new title (suggesting the original).

My hope is to haggle and get some sort of agreement that allows me a modest portion of earnings (perhaps only after a certain $ value has been achieved).. I am quite prepared to enjoy the 'honour' if not the riches of a collaboration with jazz royalty - however, cannot feel comfortable about giving away all rights to my lyric forever.

As I am also a composer, I can easily simply create another melody to suit these lyrics... though I enjoyed the idea of the creating of a song for singers from a well-known instrumental, and my lyric is particularly effective for the work in question, But I am toying with that as one choice...

I have no intention of ever trying to claim a share of the composer's instrumental... only to retain some rights and earnings on my lyric contribution.

However, the person i am dealing with - who helped obtain the acceptance of the 'adaptation' - is unwilling or unable to negotiate....

perhaps a lawyer would get farther... another option to consider (if I can afford it).

thanks for the 'Satin Doll' link... I hadn't been aware that the Strayhorn estate had taken action against Ellington.... I can't blame them...

'collaboration' can get pretty messy, I guess... and one suspects Strayhorn did not get the credit he deserves...

Good luck on your CD... enjoyed the track on your web-site!! Thanks again for your info and suggestions.

carol

[carolsokoloff]

I believe it is in the publishers rights to dictate the terms of the adaptation - so it is really down to whether you believe this will benefit the royalties of your album as whole. Also remember that you nevertheless are entitled to the revenue of the mechanical rights. http://en.wikipedia.org/wiki/Royalties#Mechanical_royalties

My gut feeling is that you should accept.

Thank you for your thoughts...

I am truly wavering on this...

and appreciate hearing your 'gut feeling'...

carol

[carolsokoloff]

Oh right.... I was wondering how the publisher got involved in the first place.

I'll send you an e-mail.

I'm happy and complimented that you enjoy our work.

We think your drummer, Kelby MacNayr, is very special indeed.

Maybe if the Shorter falls flat on its back you might consider doing a Coleman-Lazzerini tune instead.

We'll get my people to talk to your people.

.

sounds good!