In My Life

I recently read a story about one of my favorite bands from the late 60’s, early 70’s called Badfinger. They ruled the music charts from 1970 – 1972. How could they miss? They wrote great songs that became huge hits. They recorded for the Beatles label, Apple. Paul McCartney wrote their hit record “Come and Get it” for them. They played the music for the soundtrack of the film, “Magic Christian” in which Ringo appeared along with Peter Sellers and John Cleese. The song they wrote, “Without You” was a Number #1 hit for Harry Nilsson. Their records were produced by luminaries such as Todd Rundgren, George Harrison and Chris Thomas. John Lennon also had direct contact with the group. Most recently, their tune “Baby Blue” became a hit again as it was featured on the final episode of “Breaking Bad.” One would think that after all those hits, star power support and critical acclaim that today these guys should be rolling in money, sunning themselves on the French Riviera while enjoying the fruits of their labors.

Unfortunately, these lads succumbed to the age old problem faced by many successful and not-so-successful rock bands of an inability to handle success and work harmoniously together. Drugs, alcohol and a dishonest business manager combined with the immaturity of youth were the elements that sent these guys on a downward spiral. In April of 1975, unable to cope with the problems associated with the business of the band, vocalist/keyboardist Pete Ham committed suicide. This happened because after all the hits and all the notoriety, the band was not only broke, but also had incurred some serious financial debts in addition to constant bickering amongst themselves. They were unfortunate to have become involved with a dishonest business manager that mishandled their finances. Eight years later, still despondent over his band mate’s death and the continuous difficulties faced by the surviving members of the band, Mal Evans became the second person from the group to commit suicide by hanging himself. Both Ham and Evans were distraught over the legal entanglements that sapped their time, strength and whatever monies they had left. The remaining two members of the band have had a contentious relationship since that time as that discord continues today.

Too many young artists in their quest to become famous sign onerous contracts with record companies, business managers and/or record company presidents hoping that fame will overcome an agreement overly weighted in favor of the company. When the few artists who actually become famous are finally able to gain significant maturity, they begin to realize how much of their hard earned money has gone into someone else’s pocket. Sadly, it’s often too late to recoup those monies. Badfnger never recovered from this reality and in the morass of legal manipulations made them succumb to an industry famous for swallowing up the weak. In their run as successful artists, it appears that Badfinger had few days of happiness. They had many days of lawsuits, vanishing money and internal disagreements, all the while wishing for a more peaceful existence.

Virtually every successful recording artist can recount their early days in the music business where they signed agreements that were not advantageous to them. Bill Wyman, original bassist for the Rolling Stones recounts in his “Stone Alone” book about the time when “Satisfaction” was the Number #1 hit in the word after a string of many other top hits by the Stones when he needed some money to put a down payment on a house for his wife newly born child. The banker assigned to the Stones’ account told Bill that he had no funds available in his bank account for the down payment. Where did it go? Not in Bill’s pocket, that’s for sure.

Artists can go on tour and make a lot of money that way, but touring is difficult work coupled with enormous expenses that significantly eat into the profits. More often than not, a tour will gross many millions of dollars, but when the final accounting is done, it will only make a modest profit. Moreover, as they get older, some artists have a tendency to slow down a bit on the concert tour circuit. However, a consistent source of revenue for an artist that writes their own songs is the royalties derived from the playing of their tunes on any number of media outlets. And the artist doesn’t have to leave the comfort of their homes to collect those royalties!

The lifeblood for any artist in the music business is realizing money from songs they write. Every time a song is played on the radio, heard on a film, used for a commercial, etc., the person who wrote the tune gets a royalty. Both the lyricist and composer will share in this payment along with the publisher. Organizations like BMI, SESAC and ASCAP monitor every time the song is publicly heard and make sure that the royalties are paid to the composers and publishers. Publishing rights are the very keystone that rewards artists for the songs they have written.

In signing new artists to a recording contract, the agreement will always include a provision for publishing. This is because a significant amount of money will be realized by the person(s) who own the publishing rights to the songs.

According to Alter & Kendrick, Attorneys conversant in music law, Publishing Rights means: “The broad bundle of rights that are associated with a musical copyright are known as “music publishing rights.” These rights are not defined by statute but rather are terms recognized in the music industry. Similarly, the concept of the “writer’s share” versus the “publisher’s share” is based in practice, not law. Traditionally, 50% of the income derived from the exploitation of a composition is deemed to constitute the publisher’s share and 50% the writer’s share. Where the author assigns the copyright in the composition to the publisher, the publisher generally collects 100% of the income and, after deducting costs, remits the balance to the author. Other typical types of arrangements between authors and music publishers include co-publishing agreements, under which the copyright ownership is shared by the author (or heir) and publisher; administration agreements, under which the author (or heir) retains the copyright ownership and the publisher administers the rights; and co-administration agreements under which the author (or heir) retains the copyright ownership and co-administers the rights with the publisher. The performing rights societies have subscribed to the distinction between writer and publisher shares and allocate monies accordingly, usually paying the writer’s share directly to the author or his/her heirs.”

Most recently, a change in the copyright law that was enacted in the 1970s, gave artists who wrote and recorded music in 1978 the right to own and collect royalties from those songs. According to “The laws allow artists “termination rights” after thirty-five years, but they must apply for them two years in advance, meaning the first wave of artists that could benefit from the change must start the legal process now. “…. the recording industry has made gazillion dollars on those masters, more than the artists have,” said Don Henley. “So there’s an issue of parity here, of fairness. This is a bone of contention, and it’s going to get more contentious in the next couple of years.” This law gives the artist ownership of their master recordings.

While this law covers 1978 going forward, what about those artists’ songs prior to that date? It was therefore with great interest when I came across a a two, full page ad in Billboard sponsored by Sound Exchange describing their Project72 initiative. According to the ad, Sirius and Pandora have become a wellspring of revenue for musicians. However, according to Sound Exchange, neither Sirius nor Pandora has paid artist royalties on tunes played on the air that were recorded before 1972. To punctuate how serious Sound Exchange is about this fight, the ad was signed by some of the most successful song writers in the business.

It seems to me that if you write a song, you own that song. It’s your intellectual property and if a business is deriving income from that song, then a royalty has to be paid. In seeing the ad, I couldn’t help but think of the two remaining living members of Badfinger and the families of the musicians who took their lives. Here again, they are getting short-changed since the majority of their songs were written before 1972.