Each year, we examine specific demographics (gender, race/ethnicity) of directors across the 100 top domestic fictional films in North America. Directors are singled out in our work as they occupy the top leadership position in movie production. Using Box Office Mojo, we identified the highest earning fictional films released theatrically after excluding documentaries and any other content not constituting a movie. The films were produced locally and abroad and distributed by an array of companies. In total, our longitudinal sample comprised 1,600 films released theatrically from 2007 to 2022. Below, key findings are presented by gender, race/ethnicity and the intersection of these identities.

Read the Full Report Here: https://mcusercontent.com/62568938b3a09a6ef20bd8b14/files/00fd0b30-a159-282b-ca78-175a625d8bca/Inclusion_in_the_Director_s_Chair_2022_12.31.22.01.pdf

Behind its dry veneer, CISAC’s Global Collections Report
tells a story I care a lot about. It’s a human story of songwriters, painters, screen directors, writers, lyricists and other creators, whose work inhabits the culture around us. These are the people, across all repertoires, who make up the “royalty economy”, and they are the lifeblood of our creative industries.

Read the full report below:

This study is prepared by Emmanuel Legrand of Legrand Network and commissioned by GESAC – European Grouping of Societies of Authors and
Composer.

The key question this report attempts to answer is: “How do authors and composers connect with the new music streaming economy, and what can be done to improve the relationship between the two parties?”

Read the full report here: https://authorsocieties.eu/content/uploads/2022/09/music-streaming-study-28-9-2022.pdf

From your favourite rock and pop artists, to film and TV scores, to classical and ambient, music is often the backdrop to our lives. But how do artists earn money from their music? Before COVID-19 lockdowns, artists earned much of their income from live performances. But the pandemic changed that: artists could no longer rely on live performances to make a living and had to look at their other sources of income. This shift brought into sharp focus several issues around streaming, including the way in which artists are remunerated.

Download the full report below:

Paris – 26 May 2022 – CISAC has today published its 2022 Annual Report, outlining its work supporting the world’s largest network of authors societies.

CISAC’s members comprise 228- authors societies who together manage the rights of over 4 million creators from the music, audiovisual, visual arts, drama, and literature repertoires

The 2022 Annual Report shows the Confederation’s diverse services including lobbying, development of best practices, technology, and the systems to support data exchanges, help identify works and pay royalties quickly and accurately.

Read the report below

MUSIC, FILMS AND TV (2017-2020), TRENDS AND DRIVERS

Read the report below:

This authoritative report analyzes IP activity around the globe. Drawing on 2020 filing, registration and renewals statistics from national and regional IP offices and WIPO, it covers patents, utility models, trademarks, industrial designs, microorganisms, plant variety protection and geographical indications. The report also draws on survey data and industry sources to give a picture of activity in the publishing industry.

 

View the Presentation from the 9th Initiative Urheberrecht Copyright Conference below:

This study sets out to explain if and when performers share in monies generated through the exploitation of their performances via streaming services. When they do, it also explains how those payments are negotiated, what share of any streaming income performers are likely to receive, and other complexities which can impact on what payments are actually made.

Read the full study below:

In this roadmap we outline a set of clearly defined and measurable targets that the live music sector could adopt to play a leading role in meeting the Paris Agreement on climate change. In our discussions and interviews with people from across the sector, we found widespread commitment to reassembling practices post Covid-19 so that they are fundamentally more sustainable. There are many excellent examples of super-low carbon practices already happening, however, progress must be rapidly accelerated and substantial shifts in industry practice are needed.

Download the full document below

The Ivors Academny, the UK’s professional association for songwriters and composers, is raising awareness of the need for music industry reform to meet the challenges and opportunities of the streaming era.

Missing song credit information is a significant issue facing the industry and streaming is the area in which this problem is most visible and growing. Here the lack of accurate and complete data is resulting in the royalties due to songwriters and rightsholders being delayed, unallocated and/or mis-allocated to songs that have already received payment. Too often royalties are pooled into a “black box” to be distributed according to analogy0based policies.

Download the full document below

Knowing whether you should be engaged as a session musician or a featured artist can often be obvious, but there are times when your role can be difficult to determine. This can be particularly difficult for lead vocalists going in to work with another artist or producer, but can also apply to an instrumentalist taking on a lead role.

Download the Guide Below

In the midst of the economic and social paralysis arising from the COVID 19 pandemic, the tireless discipline of law has prevailed as always, if anything with increased activity. The Beijing Treaty on Audiovisual Performances (BTAP, hereinafter the “Treaty”) came into force on 28 April 2020 in the first thirty contracting parties (the minimum number required). It was a historic milestone in the area of rights related to copyright. Switzerland was the first State to join the list and, at present, 42 states are contracting parties to this Treaty.

Download the Article Below

STUDY ON THE ARTISTS IN THE DIGITAL MUSIC MARKETPLACE: ECONOMIC AND LEGAL CONSIDERATIONS

Read the full report below:

In Europe and all over the world, audiovisual composers and their organisations have launched awareness and education campaigns to stop buyout contracts, which deprive them from a fair and proportionate remuneration. ECSA fully supports those campaigns and pays tribute to all the composers standing against buyouts.

Download the full document below.

The working paper presents the results of the mapping of provisions allowing authors and performers to reclaim their rights (reversion rights) which are currently or were historically a part of the national laws of the European Union Member States. The mapping is a result of a collaborative project between CREATe (University of Glasgow) and IPRIA (University of Melbourne), with the reCreating Europe consortium. The impulse came from the introduction of the right of revocation in art. 22 of the 2019 Directive on Copyright in the Digital Single Market, a reversion right following a use-it-or-lose-it logic.

Read the full paper attached

The International Confederation of Societies of Authors and Composers (“CISAC”) and the International Organisation representing Mechanical Rights Societies (“BIEM”) would like to thank the U.S. Copyright Office (“the Office”) for the opportunity to provide comments on the Proposed Rulemaking on the Public Musical Works Database (“Database”) and Transparency of the Mechanical Licensing Collective (“MLC”). This submission follows our previous comments to the Office, in particular on the Notifications of Inquiry from September 2019 and April 2020 (SG19-1116; SG19-1284; SG20-0614)…

Read The Full Submission Attached

Read the full agreement attached.

IFPI and 21 organisations from Europe’s cultural and creative sectors raise concerns regarding the European Commission’s proposed guidance on the application of Article 17 of the DSM Directive

Read the full letter attached.

Download the full report below.

Download the editorial as a PDF below

Download the 2020 CISAC annual report below.

Since its establishment in 1998, as part of the Digital Millennium Copyright Act (“DMCA”), section 512 of title 17 has both provided critical guideposts for the expansion of the internet and produced widespread disagreement over its operation. This Report is the first full analysis of whether section 512 is working effectively in achieving its aim of balancingthe needs of online service providers (“OSPs”)1with those of creators.

 

In Paris during the first half of the nineteenth century artistic creators maintained that they had a right to a share of box office revenues. This claim was tested in the Bourget v. Morel case which was heard in the Parisian courts of justice between 1847 and 1849.

I am delighted to be here today and I would like, first, to express my appreciation for all the people who made this conference possible. In particular, I would like to thank Mr Rudolf Leska, the president of the ALAI group here in the Czech Republic, and his team, who I know have been working tirelessly, for many months, to organise this ALAI event. I am very happy and proud that we, at CISAC, could partner with ALAI this year and be associated with this conference.

One of the questions I’m most often asked, particularly by young or inexperienced members, is “why don’t composers have a union?” Virtually ever other craft in the film making process has a representative organization empowered to collectively bargain for wages and working conditions on their members’ behalf. The reality is that in days gone by, composers DID have a union – the Composers and Lyricists Guild of America (CLGA) – the forerunner to the SCL. For those who don’t know the story of the CLGA’s demise, I urge you to read our resident music historian, Jon Burlingame’s account of the chronology on the SCL’s website (http://thescl.com/about). While it can’t set minimums or conditions, I believe the SCL remains a media composer’s best resource to remain apprised of the prevailing state of the business, through its advocacy, education and exchange of pertinent information by its members.

The global recorded music market grew by 9.7% in 2018, the fourth consecutive year of growth. Figures released today in IFPI’s Global Music Report 2019 show total revenues for 2018 were US$19.1 billion.

 

The final results of a survey on European audiovisual authors’ remuneration demonstrate the urgent need for action to improve their situation. As the European Parliament is about to vote on the Directive for Copyright in the Digital Single Market which features essential provisions to improve authors’ remuneration, FERA, FSE and SAA urge MEPs to adopt it without amendment and further delay.

Across the EU, the employment landscape has shifted significantly in recent years and the profile of the workforce has evolved in new directions. An increasing emphasis on flexibility and a move towards more intermittent, short-term, project-based ways of working across all sectors has resulted in a greater diversity of employment statuses. A growing percentage of the workforce can be described as independent /self-employed/ freelance/ casual workers – a whole range of terms that denote an increasingly common employment reality. This is certainly true of the cultural sector, where the nature of the work lends it particularly to this kind of employment regime. Thus, for actors, musicians, technicians, journalists, writers and others, this is the increasingly the reality they must work with. Short-term, contract-based work, on a freelance basis is the norm, however, the work itself (eg: acting or playing in live shows, films and TV programmes, or theatre/music companies; doing the technical work in such productions; or indeed producing news reports or articles) has hardly changed at all, though in the past it would have been done under an employee contract – in some cases, a permanent one.

On 6 November 2018, AEPO-ARTIS released the preliminary version of its study “Performers’ Rights in International and European Legislation: Situation and Elements for Improvement, October 2018”.

Why self-employed workers need better rights? What unions are doing? Which priorities for the future?

The Music Consumer Insight Report tells the story of how recorded music is woven into the lives of people around the world.

The music industry is in the midst of two profound changes. First, consumers are increasingly opting to rent — rather than buy — music. Second, the demise of physical music has prompted artists to tour more often, driving significant growth in concerts and festivals.

Rights and Revenues for Music Performers

 

Since its inception in 1948, The International Federation of Musicians (FIM) has been working towards the recognition of intellectual property rights for music performers. FIM’s efforts have led or contributed to the adoption, at international level, of the Rome Convention (1961), the WPPT (1996) and the Beijing Treaty (2012). However, these rights are not a guarantee of remuneration for performers as contractual practices – from the design of to the interpretation of contracts – may simply annihilate any benefit expected from the exploitation of their recordings.

 

Online music: 1990-2017

The democratisation of Internet and the rapid evolution of information technologies since the ’90s have enabled consumers to access a new music offer so vast that was unimaginable only a few years back. Beginning with downloading and then streaming; music became available almost without restrictions.

While enthusiastically entering the digital era, Internet users also discovered the existence of copyright, a concept which even today is still difficult to grasp for many of them. This legal construction is a principle set out in Art. 27 of the Universal Declaration of Human Rights:

Article 27 […] 2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

The principle was fine-tuned as technologies developed (LPs in the middle of the 20^th century then the Internet at the turn of the millennium). An international instrument – the 1961 Rome Convention – was dedicated to giving performers and phonogram producers legal protection of a similar nature as that for authors. Labels and performers are entitled to be paid a royalty (known as “equitable remuneration” and managed by collective licences) when their recordings and recorded performances are broadcast or performed.

Sixty-five years after the adoption of the Rome Convention, the choice to protect investors (such as record labels) with a copyright remains a frustrating one for performers. And, the United States is still not a signatory to the Rome Convention which is most disadvantageous to American performers.

Outstripped by the pace of development, to begin with the phonographic (record) industry took a hyper defensive stance by promoting Technological Protection Measures (TPMs – inappropriately termed DRMs or digital rights management) and a few resounding law suits in piracy (against both commercial music pirates and, unhelpfully, individual music fans), before finding new economic models which today enable it to renew profits. These policies have meant, however, that the record labels have had to pay the heavy price of a seriously dented image.

Leading music streaming services such as Spotify, Deezer, Pandora, Apple Music, YouTube, Tidal, Rhapsody, Qobuz, or Google Play try to win over a maximum number of customers, whether these pay or not, as quickly as possible. What differentiates the various services is not so much the catalogue made available (despite the sensational withdrawal of some artists) as other aspects such as interface or sound quality (Tidal now offers MQA- master qualiy authenticated). Subscription prices remain at psychological thresholds (€9.90 a month for Deezer or Spotify).

 

But Something is Not Right…..

The figures are clearly impressive and steadily growing. YouTube: approx. 1 billion users, Spotify: 140 million users (thereof 60+ million subscribers), Deezer: 16 million. Dissenting voices are, however, being raised among artists. Taylor Swift opposes the freemium models: “Valuable things should be paid for” she says. “It’s my opinion that music should not be free.” On the 21 June 2015, she successfully upset the streaming applecart when she came out against Apple Music’s new offer not to remunerate writers, composers and performers for the 3-month trial period after their initial launch.

In reality, these illustrious voices, whom the media are quick to take up and who are followed directly on Twitter by millions of fans, are the trees which prevent us from seeing the wood. Clearly they justly denounce the shortcomings of streaming models and in particular the pitiful remuneration the talent receives in comparison to an often colossal number of times they are heard. The immense majority of performers, however, do not even receive this feeble income. Quite simply, they receive nothing. How is this possible?

The economy of recorded music has for decades been based on a simple principle: performers do have intellectual property rights – they are known as “neighbouring rights” as they are akin to but not the same as copyright. These rights constitute a potential source of income, but it generally remains theoretical on account of the unfair conditions of transfer of such rights to the record label (known as the “producer”.)

This imbalance in contractual relationships is explicitly recognized in a European Parliamentary report issued in July 2012 (the Cavada report):

“48. Calls for the bargaining position of authors and performers vis-à-vis producers to be rebalanced by providing authors and performers with an unwaivable right to remuneration for all forms of exploitation of their works, including ongoing remuneration where they have transferred their exclusive ‘making available’ right to a producer.“

The Reda report published in July 2015 (https://juliareda.eu/copyright-evaluation-report/full/ ) goes along the same lines:

“27. […] calls for improvements to the contractual position of authors and performers in relation to other right holders and intermediaries, notably by considering a reasonable period for the use of rights transferred by authors to third parties, after which those rights would lapse, as contractual exchanges may be marked by an imbalance of power.”

Such imbalance between producer and artist often means that the latter is forced by contract to accept a single, lump-sum payment which remunerates both the recording of the performance and all subsequent possible and imaginable uses thereafter.

There is, however, an exception to this global transfer, first established by the Rome Convention, which concerns broadcasting and communication to the public of commercial phonograms (diffusion of music in public places, dance halls, shops, hotels…). This type of use is not covered by an “exclusive” right but by an unwaivable “right to remuneration”. As such, no prior authorisation from right holders is necessary, but instead the payment of equitable remuneration is required. This payment by the user (a broadcaster, or night club for example) is shared between performers and producers and is in principle shared equally between these two categories of right holders.

In practice, therefore, performers have generally only one right from which they receive remuneration –that of broadcasting and communication to the public–, because of its non-transferable nature. Since all other so-called “exclusive” rights have been transferred to the producer in the label contract, it is the label that receives income from these other uses – sale, download and interactive online streaming.

There are signs that record companies may unilaterally decide to exploit pre-digital era recordings on the internet by ways of streaming or download, claiming that under the old contracts they own the performer’s exclusive right of “making available” even though such uses and the rights attached to them did not exist at the time the contract was signed.

(There are other compensatory mechanisms for private copying, which come under an exception to exclusive reproduction right and allow users to make copies for private use in exchange for a levy of which performers receive a percentage – but these monies take the form of lump sum payments which carry their own challenges in terms of accurate allocations.)

 

Downloading, streaming: exclusive right or right to remuneration?

The case of downloading is clear: this is what is referred to in treaties as the “right of making available to the public on demand”. Making available is a recent legislative addition. It is a sub-set of the communication right and was created by an international treaty from the World Intellectual Property Office. The WIPO Performers and Phonograms Treaty 1996, or WPPT, accommodates a right from the internet delivery of performers and audio recordings of their work. The USA has not embraced the “making available right, notwithstanding its membership of WIPO, as US law applies other exclusive rights (operating either separately or together) from their domestic copyright statute, although in 2016 a study of the right was published by the US Copyright Office.

Making available is defined in WPPT as an exclusive right:

“Performers shall enjoy the exclusive right of authorizing the making available
to the public of their performances fixed in phonograms, by wire or wireless means, in such a way that members of the public may access them from a place and at a time individually chosen by them.”

This type of use presupposes a triple choice: that of the recording the person wishes to listen to, the time when he/she has access to it and the place of access.

Downloading by a music lover fulfils these conditions. But as the music is retained, akin to acquiring the music by a sale, the labels consequently only remunerate artists for a possible contractual sales royalty, if provisions are made for such in the contract.

Streaming is slightly different. Users can either access a particular recording which they have selected, or listen to a curated or random playlist whose tracks are unknown beforehand, as is the order in which they are played.

In the first case, this is making available on demand, whose three WPPT criteria are fulfilled, as with downloading. In the second case, however, this is a simple communication to the public for which payment should be made on the basis of equitable remuneration – as in a broadcast where the audience simply receives what is being chosen for them.

But in this second case, despite their right unwaivable right of equitable remuneration, it is not, certain that artists will be paid. Some jurists claim that by just pressing a single key while listening (skip or pause for example), users introduce some level of interactivity which is sufficient to redefine this act as an exclusive right (passed to the label by contract), thereby eliminating equitable remuneration in favour of an exclusive right of making available on demand. This right is transferred contractually to producers and consequently, more often than not, only benefits the latter.

For an artist with a record contract – a so-called “featured” or “contracted” artist – the label will apply the contractual sales royalty, either as a percentage of the actual price or a percentage of “wholesale” thereby reducing the royalty calculation base. Often a label will deduct packaging costs despite these not being incurred in online dissemination at all. One consequence for artists on old contracts with very low royalty rates is that as much as 90% or more of making available revenue will be retained by the label – even where any monies the artist was advanced has long ago been recouped from their record sales.

For a session musician the situation is even more desperate. Their fees for recordings are part of the recording budget, and all their rights as performers (save for the unwaivable right of equitable remuneration) are acquired globally for a single fee. The result is that, of the revenue from the making available of recordings, nothing is paid to the session musicians – despite their important musical contributions to the recorded works.

 

How to Remunerate Performers?

As we have seen artists who do receive royalties are daily expressing their frustration over the pitiful amounts of money they receive

When contracted or featured artists are both the performers and the authors of the songs they perform (a singer/songwriter), the average payment per stream they receive as indicated in April 2015 by the website http://www.informationisbeautiful.net/ is:

YouTube: $ 0.0003

Deezer: $ 0.001

Spotify: $ 0.0011

Apple Music : $ 0.0013

GooglePlay: $ 0.0073

 

As for the other artists –the majority– they receive nothing except for the lump sum payment at the moment of recording.

It is clearly understandable that this situation is untenable and artists cannot be left by the wayside any longer as a result of economic models which deliberately ignore them. In order to try and put an end to this injustice, four organisations representing performers in Europe: AEPO-ARTIS (http://www.aepo-artis.org ), the International Federation of Actors (FIA), the International Federation of Musicians (FIM) and the International Artists’ Organisation (IAO) are carrying out a campaign to introduce into European legislation a right to remuneration for performers, collected from downloading and streaming platforms and managed by performers’ collective management organisations. Links to these organisations are found elsewhere on Fairness Rocks.

This right to remuneration does not replace the exclusive right of making available but is an addition to it, thereby enabling all artists whose performances are exploited online to receive a fair share of the income generated.

Promoted by the FAIR INTERNET campaign (http://www.fair-internet.eu ), this model is not new at European Union level as it already exists for the rental right (Directive 2006/115/EC, Article 5). Also, performers’ collecting societies already have a longstanding experience in this type of exercise. Consequently, the system proposed does not present any legal or technical problems.

With the proposed European Directive reviewing copyright in the Digital Single Market, European performers have a once in a lifetime opportunity to be granted a fair share of the online income they help generate. This necessary advance is the key to the new equation that both artists and those who listen to them are waiting for, in Europe and on a global scale.

The International Federation of Musicians (FIM) https://www.fim-musicians.org/

Music continues its comeback story, powered by great new music, talented artists and a re-invented record industry. A business growing again, driven by a competitive paid streaming market, means new investments in more artists and more music. That is fundamentally what we’re all about.

 

Tomorrow the European Parliament votes on new copyright law which has the potential to transform the livelihood of the talent.

 

Every writer and performer should be looking eastward tomorrow (September 12th) for the EU Parliamentary vote on a new copyright law for the digital marketplace. Parts of the text have the power to be game changers for anyone whose creative work is exploited in the EU.

 

Article 13 is an adjustment to what’s called “safe harbour protection”; these changes, mainly addressed to powerful sites such as YouTube will require them to pay fair license fees to the creative industries, for a change!   The Article won’t affect freedom of expression, memes, or upload services such as WordPress or Dropbox—only the platforms that have amassed vast fortunes distributing content to the public without paying for the work. The tech sector’s response at the time of the first vote in July was, unsurprisingly, that of digital hysteria. Volker Rieck, MD of content protection service, File Defense Service, gives a good account here.

 

Any creator would welcome the prospoect of proper licence fees being paid when their work is used online. But for the talent, for authors and performers there is more, much more. Thanks to the tireless work of talent advocacy groups in the EU, on behalf of writers, directors, actors, musicians, and songwriters, the Directive’s text has the potential to revolutionize all our dealings with film producers, record labels, and publishers.

 

The EU Legal Affairs Committe was enclouraged to adopt the radical (?) principle of equitable and appropriate remuneration for creators. The response is a text designed to ensure that “authors and performers receive fair and proportionate remuneration for the exploitation of their works”. And this includes online distribution.

 

Here’s how they propose to do it. Chapter 3 of the draft Directive (Articles 14 to 16a) has been labelled by talent advocacy groups as the Transparency Triangle – but more lucidly might be described as giving authors and performers, when their work is assigned or licensed, the rights to, track transfers, revisit their reward, reclaim rights and determine disputes.

 

Article 14 will give writers and performers of all stripes the right (at least once a year) to be given by those to whom they have directly licensed, assigned or transferred rights in their work “adequate, accurate and sufficient information on the exploitation and promotion of their works and performances from those to whom” including details of “modes of exploitation, promotional activities….revenues generated and remuneration due”. That would be refreshing.

 

The talent is always the last mouth to feed in the royalty food chain.

 

While digital music revenues look minuscule when they arrive on royalty statements, the fault should not necessarily always be laid at the door of Spotify, say, or Apple. The licence fees these services pay to the publishers and labels are not to be sneezed at. It is what happens to the money once it gets to the pocket of the corporation….

 

The music business deals signed by writers and performers with publishers and labels almost all say that the companies do not have to share income with the songwriters/artists unless money can be “directly and identifiably” attributed to individual songs or tracks.   This contract term acts as an inbuilt disincentive for these companies to maintain accurate copyright data, because any money the label or publisher cannot attribute they can keep! A good reason for us all to want to see what went into the front end of the income sausage.

 

Screenwriters and directors are both classed as film authors but unlike songwriters and musicians they have to sign away all their rights upfront for a single fee and have no right to be accounted to by the film studios or producers.

 

As the Spinal Tap creators show in the Shocking Facts section of their site www.fairnessrocks.com Europe’s audio visual market was valued in 2013 at €122 billion. If one calculates the share of exploitation revenue from the entire EU audio visual market that goes to directors and screen writers it is less than half of one percent: 0.37% (source: SAA). In the USA, filmed entertainment was valued in 2017 at US$226.9 billion (source selectausa.gov) from box office, home video and tv subscriptions. If one calculates the share of this revenue that is paid to screenwriters and directors via their residuals (collected and paid out by the talent guilds – WGA and DGA) it is estimated that these two talent groups share approximately one half of one percent: 0.58%.  One can’t argue that a little fiscal leg up might be useful.

 

If Article 14 of Europe’s new law is passed on Wednesday Europe’s film and music talent will be in a much better position to see the sausage in its entirety – though the inclusion of the word “directly” in referring to the talent’s licensing partners may make access right across the world a challenge (or moot?).

 

Article 15 of the new law imports a legal principle known as the Best Seller Rule. Its aim is to give the talent a legal right to revisit the commercial terms of a contract with a distributor and renegotiate to better reflect actual income. It will be ground-breaking if this Article becomes law in Europe. The principle recognises that contracts are usually signed before the creator has any idea of what their work is worth. Those Fairness Rocks readers following the efforts of Chris, Rob, Michael and Harry to challenge Vivendi over their concealment of their entitlements from the film This is Spinal Tap, will understand why such a law would be a very good idea indeed.

 

Article 16 would oblige EU Member States to create affordable dispute resolution to ensure the effectiveness of the transparency and contract adjustment mechanisms. The four plaintiffs can speak with some authority and wistfulness about the attractions of affordable dispute resolution. For younger or less successful creators such a forum would be a breakthrough in access to justice and redress.

 

Finally, Article 16 (a) would give the talent a right of revocation – to regain control of works that are not being actively exploited. The USA has had a termination right on the statute book since 1976, and it has just recently “kicked in”. Across the USA, the talent is either reclaiming rights or renegotiating deal terms. It would be great to help our “older cousins” in Europe to be able to do the same.

 

As one can imagine the corporations are all in favor of the Article 13 licensing opportunity but not so keen on the Chapter 3 rights (14, 15 , 16 and16a) that have the power to change the lives of the very people on whom the creative industries depend.

 

Keep any eye out for news what the EU Parliament decides tomorrow.

 

And sign up to www.fairnessrocks.com for regular news updates about your rights and the industry you have built.

FR

 

A traditional contract between a band or solo artist and a record label is an interacting mesh of rights and obligations borne by both parties. No prizes for guessing which party carries the most obligations and which leads the field in having rights. That said, each party agrees to honour their respective roles in the deal.

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ARTISTS’ OBLIGATIONS

To record and deliver a recording

To promote the recording

To pay for the costs (via a recoupable advance) including studio costs, instrument costs, the producer, the session musicians and singers.

To make one or more videos

To work to the best of their abilities

To deliver subsequent recordings upon receipt of option exercise by label

To share with the label income from merchandise, publishing, sponsorship and tour profits (if a 360 deal)

ARTISTS’ RIGHTS

To receive royalty accounting but only where the money is directly and identifiably attributable to their work.

To audit the label (upon notice)

To be consulted over (possibly approve) artistic choices such as producer choice, song choice, use of the tracks in ads or films

To collect neighbouring rights income in territories where entitlement exists

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LABELS’ OBLIGATIONS

To pay the advance specified by contract

To reproduce, manufacture, (promote) and distribute the recordings

To collect royalties, account and pay royalties to the artist but only where the money is able to be matched directly and identifiably with the artist’s work.

To pay the mechanical licence fee for copying the songs on the recordings

LABELS’ RIGHTS

To control the exclusive recordings services of the artist & to exercise options and call for further recordings

To require delivery of the recordings

To own the copyright in the recording (in perpetuity)

To determine the marketing strategy

To conclude licence agreements with subsidiaries on customary company terms and receive foreign income

To conclude licence agreements with third parties on terms in their absolute discretion and collect revenues

To collect the 50% share of neighbouring rights income

To be paid a share of income from merchandise, publishing, sponsorship and tour profits (if a 360 deal)

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A performer is supplying services not delivering a copyright. If however, they have independently paid all the costs of production themselves and therefore own the recording’s copyright, they can grant a short term licence to a label in exchange for the label’s manufacture, distribution and promotion services.

 

The label’s function is to fund, manufacture, distribute, promote and protect the copyright sound recording that results from the artist delivering their services as a recording artist. Unless the contract specifically says otherwise the label will own the copyright in the recording, usually for the life of copyright (ie in many countries this is 70 years from publication). In industry folklore this is the metaphorical equivalent of the bank giving you a mortgage to buy a house, but when you pay off the mortgage the bank keeps the deeds and ownership of your house.

 

ADVANCES

The funding aspect has two elements. It is made up of a non-returnable advance payment and second recoupable element which is the cost of making the recording (ie studio costs, the fee for session musicians, the fee for the producer and engineer, instrument and equipment hire etc). The artist must recoup these two cost elements from income generated by exploitation. The key point to remember is that the income used for recoupment is the artist’s royalty percentage not gross revenue from the exploitation of the recording. So if the artist is on a 15% royalty then that 15% (after adjustments – see below) is the source of recoupment monies.

 

ROYALTIES

The royalty percentage is calculated by a “base price” which will be defined in the contract. It might be the wholesale price, or less commonly the retail price; but both prices will be subject to deductions before the final “base price” is arrived at. Common deductions are taxes, costs of physical packaging including the costs of the artwork – and these deductions will be percentages varying from 15% to 30% in some cases. As a result an artist might end up with a base price that has been chiselled by as much as 35% or 40% from the original wholesale price, once the total deductions have been made.

 

Each use of the recordings will carry a specified royalty. So, for example while a sales royalty may mean a 17% royalty (after deductions) the royalty will halve if a track is included on a compilation album. If a track is used in a film or TV programme, or in an advertisement, it is usual for 50% to be paid to the artist (subject always to recoupment progress).

 

The studio producer (most famous exemplars of this key production role being Quincy Jones, Jeff Lynne, Dr Dre, the late, great Sir George Martin, the currently incarcerated Phil Spector and Mutt Lange) is paid a fee (which is a recording cost) and a royalty percentage. So, if an artist’s royalty is stated as 25% and the producer royalty is 3%, this leaves the artists with 22% from which to recoup the advances (personal and recording). Some producers will negotiate their royalty from the very first record shifted (known in the trade as “record one”). The effect of this is that the artist’s recoupment account goes further and further into the red via the payment to the producer from the moment the record goes on sale.

 

OPTIONS

When a label is signing an artist to a multi-album deal, the contract will be framed as a series of options. Each option is for a defined period of time in which the artist is obliged to record, deliver and promote an album. A multi-album contract might contain three or four option periods. An option period is something of a moveable feast. It might be defined as a specific period of time in the contract but will be extended where an artist delivers the album late, for example. Once the first option period has passed, the label gives the artist formal notice and exercises its option to call for a second (or the third or fourth) album if it wants to continue the relationship. The exercise of an option will trigger a second (or third or fourth) advance for the artists and to pay for recordings.

 

There is an absolutely genius mechanism (genius, from the label’s perspective, that is) behind this option/advance principle. Because it can take up to three years for foreign revenues to make their slothful way back to the country where the deal was originally made, an artist’s recoupment account may be unrecouped as far as actual money received by the label is concerned. But so-called “pipeline income” may be of sufficient value that it causes recoupment and is about to be paid to the artist as a cash royalty. However, once the option is exercised and the second (or third or fourth) advance is paid, no cash royalties are then due because the artist’s recoupment account has gone back into the red – ie unrecouped. In effect the label lends the artist their own pipeline income as an advance and then requires the artists to recoup it from sales from the next album. See what we mean? Genius!

 

After fulfilling all the delivery requirements (known as the “minimum commitment”) in each period the artist is free to leave for another label, or re-sign with the same label. Notwithstanding the end of the deal, and the end of the recording relationship, the copyright in all the recordings remains the property of the label in perpetuity. (This perpetual ownership may be subject to any statutory termination rights – in the USA, for example – or contractual termination that might be triggered by, say, a label’s bankruptcy.)

 

The contract might require an artist to make a video – and carry 50% (usually) of the costs of its production. This cost is added to the recoupment account along with any other monies the artist might request such as so-called “tour support” to help fund a live tour, or “loans” for other purposes that the artist might request.

 

APPROVALS

An artist may have certain conditional rights over the use of their recordings in film or tv, or in advertising for products or services, or over the choice of their producer. The strength of this control (ie the amount of genuine control the artist has) can vary from mere consultation to actual prior approval and will depend on their status, or negotiating power.

 

ONLINE

With the arrival of online delivery, and the accompanying plummet in income from sales of physical copies, many labels introduced what were called “360 deals” which meant that the label (ie the record company with a recording contract – the clue as to their role being in the name!) acquired a contractual entitlement to revenue from all an artists’ activities – live shows, merchandise and sponsorship and maybe even song publishing. The labels also exchanged shares in some online music delivery services, which will mean quite a windfall for the labels (only) in the case of a services’ IPO or other flotation such as that recently launched by Spotify. See also What Digital Did.

 

NEIGHBOURING RIGHTS

International law recognised performers’ (and labels’) ongoing interest in the use of the recordings aside from the sales of physical copies. While songwriters had long received royalties when their songs are broadcast or publicly performed, traditionally there was no equivalent for performers (or the copyright sound recording). So, in the period before WWII the International Labour Organisation lobbied hard for an ongoing right for performers that mirrored the royalty entitlement position of songwriters and composers. On reconvening after the interruption of war (during which time there had been the invention of magnetic tape) the performers were joined around the table by the broadcasters and record labels (via IFPI). The resulting international treaty (Rome Convention) was signed in 1961 and provided for a payment called “equitable remuneration” that was to be paid anytime that a commercial sound recording was broadcast or publicly performed (now called “communicated to the public”). The Convention allowed the payment to be paid to the label or the performer or both. The right upon which this revenue entitlement sits is known as a “neighbouring right”. The money is customarily allocated 50/50 – though in a few countries the performers get a larger share.

 

Not all signatory countries implemented the Convention domestically in terms that gave performers a statutory right. Until a 1996 EU Directive the UK only gave performers an ex gratia payment. In contrast Continental European countries largely gave all performers a statutory right to the money. As the USA has not signed the Rome Convention US performers do not have a right to be paid this kind of revenue at all (except where their performances are delivered by non-interactive online radio – paid via Sound Exchange).

 

One point to note: in most Rome Convention countries, the labels and the performers operate two joined CMOs together to negotiate and collect fees from the users of the music. However, when the UK implemented the EU law that obliged the UK government to give performers the right by statute, the performers were only given the right to claim this money from the labels! At a stroke of the legislators’ pens, the UK performer was reduced to supplicant (again) and had to apply via a CMO which is wholly owned by labels. So, while there are performer board members on the CMO (called PPL, Phonographic performance Ltd) the 50/50 allocation is calculated and paid under the direction of the powerful corporate right owners.

 

And, as mentioned in Shocking Facts, the 50/50 allocation of neighbouring right revenues (equitable remuneration) is not applied to streaming revenues. The right of “making available” is legally a sub-set of the communication to the public right (which attracts equitable remuneration). But the labels in their wisdom did not mandate the UK CMO to collect streaming fees. The labels license their catalogues to the streaming services but treat the licence income as a sale when it comes to paying the talent. A recording artist’s contract may identify a sales royalty of 15% or much, much less for heritage artists. This sales percentage will be applied to, for example, Spotify revenues and in some instances, after the label has deducted costs such as packaging – in line with the definition of the royalty base price! Put bluntly, rights out from a label are for a licence, money out from a label is for a sale. So, in a blinding double standard, while 50% of the money is shared with UK performers from insignificant streaming services because they are licensed by the CMO, all the big streaming companies pay the labels direct and the labels give a much smaller slice to the talent. The deals are all subject to tight non-disclosure agreements, so an artist manager has very little ability to determine the terms on which their client’s rights have been granted and for how much.

 

Another example of how this system works in practice is the unequal treatment of performers and labels from the USA. As the USA is not a signatory to the Rome Convention there is no legal entitlement to money. So, in fairness, neither US labels nor performers should have access to foreign neighbouring rights income as the USA offers no such reciprocity. But the US labels have offices and subsidiaries in the UK and in other countries that signed the Rome Convention. The effect in the UK, for example, is that the US labels collect their money for US recordings from the UK but not a penny, cent or peso is shared with US artists – the cash goes straight to the US labels’ bottom line, the shareholders and executive bonuses. ^[1]

 

AUDITING

An artist is accounted to and paid (if they are recouped) half yearly, sometimes quarterly, but between 60 and 90 days after the end of the accounting period. So if there is by contract half yearly accounting (June and December) plus 90 days, accounting will be issued on or around 31st March and 30th September each year. It is highly recommended that an artist audits their label. This is not just to determine that payments are correct, but it also sends a powerful signal to the company that the artist is awake and taking care of their business affairs. In a combined submission about music licensing made to the US Copyright Office in 2014, from the UK’s Music Managers Forum and the Featured Artists Coalition ^[2], there is an extensive and enlightening quote from an experienced music industry auditor:

“I experienced an occasion where a label has asserted that they are not aware of the receipt of lump sum monies from licensees and has insisted that I, as auditor, identify a particular example of such a lump sum before they can comment. However, I am not able to obtain this information as the licensees have signed NDAs. In the case of other types of lump sums received by labels, such as settlements with copyrights infringers or audio and video public performance income, I am sometimes told that it is not possible to share this income with artists as there is no way of breaking the income down by recording. But the systems are NOT incapable of allocating the money. The [CMOs] and other rights organisations can allocate blanket licence fee money to individual songwriters. Data is always available which can be used to make a reasonable allocation.

On the occasions that this income is shared with the artists, I have no ability to verify the allocation as there is no audit trail leading back to the income received from the source. I am told that this financial detail is not available to me as the source amount relates to all artists on the label and I am not entitled to that information as I am auditing at the request of an individual or single band. The company may in some cases describe a mechanism for allocation but I am not permitted to see the various stages of the calculation going back to the source of the funds. Also, where a payment is received in, say, the USA, for a global or a UK/USA deal, often the UK office is simply sent an amount, being the internal UK allocation. They themselves are not being given any detail of the original value of the licence.”

 

THE INDUSTRY

The most recent IFPI report on the music industry can be found here in the Library as well as an essay about music artists who control their recordings and publishing and use aggregators to get their product distributed – both digitally and in some cases, physically. Also the Library contains an article about song writing contracts, the latest figures from CMO regulatory body CISAC which show the health of music authors’ collections worldwide and a host of other industry-related articles.

 

^{[1] For more useful information about US practices in music rights licensing try Steve Gordon’s book The Future of the Music Business (4th Ed., published by Hal Leonard). For practices in play elsewhere there are many books on the market.}

^{[2] https://www.copyright.gov/}

How Screenwriters and Directors actually Get Paid

The importance of fair remuneration for our culture and economies

When one thinks about writers and directors, one instinctively pictures the handful of superstar movie moguls that in our minds, define the profession. The reality however is that the overwhelming majority of audiovisual creators are relatively unknown, self-employed individuals that face a huge challenge in their profession.

They are not wealthy, do not benefit from sick pay, pension or regular wages, and are engaged in a full-time career where a huge proportion of their work is unpaid. Each project can take years to come to the stage or screen, and there are absolutely no guarantees that it will not stall on the way. Usually, the only way that they can remain in the industry is to try to earn a livelihood from their royalties from previous projects and use them to navigate the cycles of paid and unpaid work.

Unfortunately, because of the way that screenwriters and directors actually get paid, the option to earn an equitable living from the success of their back catalogue is more often than not, denied them.

“We are fortunate and grateful to be able to do a job we love but that doesn’t mean we should be denied the opportunity to share in the success of our work.”

­– Yves Nilly, French screenwriter and President of Writers & Directors Worldwide.

The Remuneration Process

The principle for fairly remunerating audio-visual authors is well established in international copyright protection instruments such as the Berne Convention, the WIPO Copyright Treaty and the 2012 Beijing Treaty. In practice however, it’s far more likely that authors will be forced to accept whatever contract is offered. And in most cases, this will be a crude lump sum payment rather than any kind of equitable share in the ongoing success of the work.

The 2015 economic study into screenwriters and directors’ remuneration in Europe, conducted by SAA [insert link on FR site to SAA] revealed that in 2013 writers and directors received only 0.37% of the revenues within the EU’s successful audiovisual market – a market valued at €122 billion.

The reason that authors can’t negotiate harder is that without an unassignable, unwaivable right to remuneration set into law, they have a vastly weaker negotiating position against the powerful, well-funded producers and distributors. For authors who don’t earn a living from their back catalogue and who are about to begin the long, unpredictable process of bringing new work to the stage or screen, holding out for a better deal is simply not an option.

Walking through the individual steps of this process, one can understand just how challenging it is for audiovisual creators and why so many of them do not survive the journey.

The development of an original film project for example, begins with the creative stage for the author. This comprises all of the brainstorming, storyboarding and development necessary to produce a single concept for a project. These ideas are continually reworked until very occasionally, they lead to the writing of a screenplay or the composition of a team of authors. This process alone can take several years to complete.

The finished screenplay is then used to locate an appropriate producer. This essential step generates the funding to advance the project but if it’s unsuccessful, the author must start again at the very beginning.

The next stage requires the producer to acquire the rights from the author to use the work. Because independent authors negotiate this acquisition from such a point of weakness, the majority of them receive their first and only payment at this stage. This inequity is exacerbated by having the negotiation take place prior to the start of production and long before anybody could accurately estimate the value of any future success. There is therefore no way to ensure that this initial payment is fair for either party.

The following stage of the process is occupied with pre-production as the team begins refining the work. Potential sources of further funding are investigated while the producer evaluates the commercial potential of the project, estimating budget and return on investment. This can take up to six months.

Production and post-production can then consume another year with shooting days for the cast and crew, editing, music selection, special effects, subtitles and so on. With this completed, the process moves into a lengthy period of sales and marketing as the producer looks to sells the rights to distributors who will use the film in different markets. Promotion begins and the authors are asked to support the launch at film festivals, on TV shows and in media interviews.

Finally, after years of work, the film is released and (one hopes) widely distributed via theatres, DVD, video-on-demand or TV transmission. This last stage lasts for the entire life of the work. The producer receives a portion of each resale payment and other partners receive a return on their investment in relation to the success of the film. The majority of writers and directors however, those whose work is the very core of the entire project, receive no share in this success.

Why Does This Matter?

There are a number of issues with the way this process fails the screenwriter and director. However positive the intent, a lump sum payment made way before the project is even produced, is never going to fair to either party. If a film fails, the producer has to bear the cost of this lump sum and if it succeeds, the people who created the initial work are unlikely to have been equitably remunerated. Even worse is that because the journey from idea to finished production is so long and uncertain, the inevitable wait for the next sporadic payment is usually the catalyst that forces such creators to leave the industry altogether. Consider also the issue facing young writers and directors or those from less-developed areas of the world. They are denied an opportunity to build a career based upon the success of their work.

The net outcome of a lack of fair remuneration is that everybody loses. Screenwriters and directors cannot afford to create. Producers and distributors become starved of exciting new work. The public misses out on the wealth of diverse culture from an industry that can no longer provide it. And the entire world is deprived of the economic powerhouse that creative industries represent.

To put that last point into context, a 2015 study by EY¹ found that the film, television, book and performing arts industries contributed €775 billion to the world’s economy and supported more than 13 million jobs. This is a contribution that any government should fight to protect.

How Do We Solve This?

Despite the complexity of this issue, the solution is deceptively simple. A small change in the law for screenwriters and directors can ensure fair pay and restore equality. Imposing an unassignable, unwaivable right to remuneration from exploitation of the audio visual work across all media would bring their rights level with other players by guaranteeing them a fair share in the future success of their works.

In this law, creators would be listed as authors and would receive remuneration proportional to amount of revenue generated by each use of their work. This right would be unwaivable and unassignable so it could not be ignored or transferred to a third party following an inequitable negotiation. Finally, the remuneration would be paid for by the end users (such as the TV channels or digital platforms) to the organisations mandated by authors to collect and distribute it.

 

“Right now, Latin America seems to be leading the way in establishing a remuneration right for audiovisual authors. We believe they’re setting an example for the world to follow.”

– Horacio Maldonado, Argentinean film director and Vice-President of Writers & Directors Worldwide.

This is not a new solution. An audiovisual remuneration right for some, if not all kinds of exploitation, is already operating successfully in almost 20 countries and has quantifiably stimulated the domestic production of new work. This number is growing all the time with both Chile and Colombia signing it into law in the last 12 months and China well on the way to adding it. Countries all over the world are beginning to realise the tangible cultural and economic value that protecting their creators can deliver. Proposals for such a remuneration right are currently (2017) under consideration by the European Parliament but success is not assured.