ListenSmart Beta Music Publishing Contracts
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Removal requests: email seanfenlon@yahoo.com with the page address.
Note, 2026: The publishing contracts in this thread, posted in May 2000, were a beta draft. None was ever signed, so ListenSmart.com never collected or paid any music publishing royalties. Revenue was minimal. More on the business plan page.
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| #1
Sean Fenlon Administrator Posts: 206 |
posted 05-19-2000 01:13 PM
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What is music publishing? One of the most intricate, least understood, and most important elements of the music business is the role of music publishing. Moreover, confusion regarding publishing is almost as common among music industry professionals as it is among artists. A thorough explanation of the music publishing industry would consume hundreds of pages. Thus, we urge you to use the recommended readings as a source for more information. Our explanation here is to provide an overview of the unique role ListenSmart.com plays as a music publisher. In general, music publishing is the business of exploiting artists’ music for its maximum potential earnings through licensing songs and collecting/distributing the royalties. Your music can earn money from:
Royalty income from all of the above channels is generally split on a 50/50 basis between the music publisher and songwriter. The publisher's half of this income is (creatively) referred to as the “publisher's share,” and the songwriter's half is referred to as the “songwriter's share.” Thus, a music publisher earns their share by promoting your music to its maximum earning potential, and then performing administrative duties for the artist, so that the artist does not need to be involved with the “business” side of their art. As an artist, your talents are usually best spent in creating great music. A publisher is a partner that can help take your great music to its potential markets, and also make sure all the appropriate payments and distributions are being made for any use of your music. Thus, a music publisher is a company that forms a business relationship with artists and shares the interest in exploiting the artists’ song for the maximum amount of royalties. Also, music publishers administer copyrights, license songs to record companies and others, and collect royalties on behalf of the artists. Some motivated artists prefer not to sign music publishing contracts, but rather create their own publishing company, perform their own promotion, and either administer the rights themselves or hire a third party to do the administration work for them for a small percentage. Aside from the promotional efforts, it is important to understand that the administrative role of a music publisher must be performed if and when your music begins to earn royalties. A music publishing company such as ListenSmart.com can perform this role, or an artist can form their own music publishing company, and collect the music publishing royalties themselves. This way, they are able to keep a larger percentage of the royalty distributions (i.e. more than their 50% “songwriter’s share”). What is important to take from this brief overview, however, is the understanding of the 50/50 split of music royalties, and the role performed by the music publisher to earn their share, namely, promotion and administration. For more information on music publishing, please refer to the following resources: Music Publishing: The Real Road to Music Business Success How to Have Your Hit Song Published All You Need to Know About the Music Business The Musician's Business and Legal Guide ------------------ IP: Logged |
| #2
Sean Fenlon Administrator Posts: 206 |
posted 05-19-2000 01:13 PM
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Introduction to the ListenSmart.com Business Model Artists will be given the opportunity to establish ListenSmart.com as their contractual music publisher. Songs which ListenSmart.com becomes the music publisher automatically become “revenue sharing” songs. The artist may elect music publishing/“Revenue Sharing” participation on a song-by-song basis. For each “revenue sharing” song or composition, the artist will sign a standard single-song publishing contract. The exact distribution amounts will be commensurate with the total number of downloads received by the artist's “revenue sharing” songs, relative to the songs of all the other “revenue sharing” artists, and which contract option the artist elects (the artist may select from two music publishing contract options for each of their songs). For example:
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| #3
Sean Fenlon Administrator Posts: 206 |
posted 05-19-2000 01:14 PM
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CONTRACT OPTIONS Since it is very difficult to determine one type of publishing contract that works well for all artists in a variety of situations, ListenSmart.com will offer a choice of two options for our music publishing contract. Contract Option A: 75/25 Agreement (Also known as Co-publishing) Artist maintains the entire portion of the “Writer’s Share” and equally splits the “Publisher’s Share,” resulting in an overall relationship of:
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| #4
Sean Fenlon Administrator Posts: 206 |
posted 05-19-2000 01:14 PM
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PUBLISHING CONTRACT OPTION A: STANDARD SONGWRITER’S/CO-PUBLISHING CONTRACT 1. (a) In consideration of Writer's Prorata Share of Ad Revenue, as defined below, and for other good and valuable consideration, Writer hereby transfers and assigns to Publisher, its successors and assigns, an undivided fifty percent (50%) of Writer’s interest in and to the original musical composition(s) written and composed by Writer set forth on Schedule “A” attached hereto (each such composition to be referred to herein as the “Composition”). Said assignment includes, without limitation, an undivided 50% worldwide interest in the title, words and music thereof, all copyrights and registrations with respect thereto, and the exclusive right to secure copyrights and extensions and renewals of copyrights in the same and in any arrangements and adaptations thereof. If the Composition has previously been registered for copyright in the name of Writer or other songwriters, or otherwise if Publisher shall request, Writer shall deliver or cause to be delivered to Publisher an assignment of the appropriate interest therein, in the form attached hereto as Exhibit “A.” (b) Subject to paragraph 6 below and to Writer's prior approval as provided herein, Writer further grants to Publisher, its successors and assigns the exclusive and perpetual right, license, privilege and authority throughout the universe to administer and exploit the Composition, to print, publish, sell, dramatize, use and license any and all uses of the Composition, to execute in its own name any and all licenses and agreements whatsoever affecting or respecting the Composition, including but not limited to the right to: (i) perform and license others to perform the Composition publicly or privately, for profit or otherwise, by means of public and/or private performance, radio broadcast, television, online transmissions, broadcasts and webcasts or by any and all other means, whether now known or which may hereafter come into existence; (ii) make or cause to be made, and to license others to make, master records, transcriptions, soundtracks, pressings, and any other mechanical, digital, electrical or other reproductions of the Composition, in whole or in part, in such form or manner and as frequently as Publisher shall determine, including the right to synchronize the same with sound motion pictures and to use, manufacture, advertise, license or sell such reproductions for any and all purposes, including, without limitation, private and public performances, radio broadcast, television, sound motion pictures, wired radio, phonograph records, online media, digital download, streaming, and any and all other means or devices, whether now known or which may hereafter come into existence; (iii) print, publish and sell, and to license others to print, publish and sell, sheet music, orchestrations, arrangements and other editions of the Composition in any and all forms, including, without limitation, the inclusion of any or all of the Composition in song folios, compilations, song books, mixed folios, personality folios and/or lyric magazines with or without music; and (iv) Any and all other rights of every kind and nature now or hereafter existing in the Composition under and by virtue of any common law rights and all copyrights and renewals and extensions thereof, including the grand and small performance rights. (c) (i) Writer shall keep Publisher advised of Writer’s current address, email and contact information at all times. Approval requests shall be submitted to Writer in the manner most practical, timely and efficient based on the urgency of the request and in accordance with the contact information provided by Writer, including, without limitation, by email. In the event that Writer does not respond to a request submitted by Publisher to a last known current contact destination within five (5) days of Publisher’s initial request, then Writer’s approval shall be deemed to have been given. (ii) Notwithstanding the foregoing, Publisher agrees to issue any and all licenses in respect of the Composition that are reasonably requested by Writer. Further, notwithstanding the foregoing, Writer acknowledges the importance of prompt response to requests for routine background film and television synchronization licenses and the fact that it may be impractical for Publisher to secure Writer's prior consent with respect to such requests. Accordingly Writer hereby grants to Publisher its prior approval with respect to any and all such requests for routine background film and television synchronization uses that are directed to Publisher, as well as for routine statutory rate mechanical licensing. (iii) As to film and television synchronization licensing of the Composition, Writer hereby further grants to Publisher the limited right in such instances to license the corresponding use of the master recording of the Composition as recorded by Writer and uploaded to Publisher’s website. The aggregate fee payable pursuant to such license(s) in respect of any particular use of both the Composition and the recording thereof by Writer shall be deemed allocated one-half to the use of the Composition and one-half to the use of the master recording. Publisher shall account and pay to Writer fifty percent (50%) of the amount so allocated to such use of such master recording, at the same time that Publisher accounts to Writer in respect of the corresponding use of the Composition. 2. Writer hereby warrants and represents that (a) the Composition is an original work and contains no socalled “samples” and that neither the Composition nor any part thereof infringes upon the title, literary or musical property or copyright of or in any other work nor the statutory, common law or other rights (including rights of privacy) of any person, firm or corporation; (b) Writer is the sole writer and composer and the sole owner of the Composition and of all the rights therein; (c) Writer has not sold, assigned, transferred, hypothecated or mortgaged any right, title or interest in or to the Composition or any part thereof or any of the rights herein conveyed; (d) Writer has not made or entered into any contract with any other person, firm or corporation affecting the Composition or any right, title or interest therein or in the copyright thereof that would interfere with the rights granted to Publisher herein; (e) no person, firm or corporation other than Writer has or has had claims or has claimed any right, title or interest in or to the Composition or any part thereof, any use thereof or any copyright therein; (f) the Composition has never been published; and (g) Writer has the full right, power and authority to make this present instrument of sale and transfer. 3. In consideration of this contract and the rights and interests granted to Publisher herein, Publisher agrees to pay to Writer, the royalties in respect of the Composition in accordance with Exhibit "B" attached hereto. It is acknowledged by Writer that said royalties, if any, include both Writer’s so-called “writer’s” royalties and Writer’s co-publishing share of royalties and other sums earned in respect of the exploitation of the Composition. 4. Within forty-five (45) days after the last day of each accounting quarter, Publisher will prepare and furnish quarterly statements to Writer. Each such statement shall be accompanied by payment of any and all sums shown to be due thereby. Any and all objections, questions or disputes concerning any such statement shall be waived by Writer unless such written objection is received by Publisher within one (1) year after Publisher’s remittance of such statement to Writer. 5. Writer hereby grants to Publisher the perpetual right to use and publish and to permit others to use and publish Writers name (including any professional name previously or hereafter adopted by Writer), likeness and biographical material, or any reproduction or simulation thereof, and the title of the Composition in connection with the printing, sale, advertising, distribution and exploitation of music, folios, recordings, performances, and otherwise concerning the Composition, and for any other purpose related to the business of Publisher, its associates, affiliates and subsidiaries, or to refrain therefrom. 6. In the event that after the date which is twenty-four (24) months after the date hereof, a particular Composition shall not: (a) have been licensed for a fee for use in a television production, motion picture, commercial advertisement, or commercial phonorecord release for distribution by (i) a so-called “major” record label (as that phrase is commonly understood in the music business) (“Major”), (ii) a label distributed by a Major, or (iii) an independent record label that is recognized nationally (in the country of origin); or (b) have earned at least Two Thousand Dollars ($2,000) of Writer’s Prorata Share of Ad Revenue; or (c) have earned at least Seven Thousand Dollars ($7,000) of aggregate gross royalties or other income (including, without limitation, any ad revenue, royalties, performance income or other sums reasonably expected by Publisher in its best business judgment to have been earned but not yet paid), then, provided that Writer requests same in writing within one hundred twenty (120) days after the end of such twenty-four (24) month period, all right title and interest of Publisher acquired from Writer with respect to such Composition shall revert to Writer at the end of the calendar quarter during which Writer's written notice is received by Publisher, subject to the terms and conditions of any license issued or promised to be granted by Publisher as of the date Publisher receives such notice. Publisher shall thereafter have no interest in and to such Composition. Notwithstanding the foregoing, Publisher shall continue to have the right to collect and retain any royalties and/or income earned from the exploitation of the Composition through the effective date of reversion, whether or not paid as of such date, subject to payment of royalties to Writer hereunder. 7. Writer hereby waives any and all claims which Writer has or may have against Publisher, its associates, affiliates and subsidiaries by reason of the fact that the title of the Composition may be the same as or similar to that of any other musical compositions heretofore or hereafter acquired by Publisher. 8. Writer hereby authorizes and empowers Publisher as Writer’s true and lawful attorney to register and/or renew, pursuant to law, for and in the name of Writer the copyright of the Composition, and to execute and deliver in the name of Writer a formal assignment of each copyright and/or renewal copyright to Publisher, for its own use and benefit, subject to the payment of royalties to Writer as herein provided. 9. Writer shall not transfer or assign this contract or any interest therein or any sums that may be or become due hereunder without the prior written consent of Publisher, and no purported assignment or transfer in violation of this restriction shall be valid to pass any interest to the assignee or transferee. 10. Publisher may take such action as it deems necessary, either in Writer’s name or in its own name, against any person to protect the rights and interest acquired by Publisher hereunder. Writer will, at Publisher’s request, cooperate fully with Publisher in any controversy which may arise or litigation which may be brought concerning Publisher’s rights and interests acquired hereunder. Publisher shall have the right, in its absolute discretion, to employ attorneys and to institute or defend any action or proceeding and to take any other proper steps to protect the right, title and interest of Publisher in and to the Composition and every portion thereof, and to settle, compromise or in any other manner dispose of any matter, claim, action or proceeding and/or satisfy any judgment that may be rendered in connection therewith, in any manner as Publisher in its sole discretion may determine. Any legal action brought by Publisher against any alleged infringer of the Composition shall be initiated and prosecuted by Publisher, and if there is any recovery made by Publisher as a result thereof, after deduction of the expense of litigation, including but not limited to attorneys’ fees and court costs, a sum equal to fifty percent (50%) of such net proceeds shall be paid to Writer. If a claim is presented against Publisher with respect to the Composition, and because thereof, Publisher is jeopardized, Publisher shall have the right thereafter, until said claim has been fully adjudicated or settled, to withhold any and all royalties that may be or become due with respect to the Composition pending the final adjudication or settlement and payment of such claim, in an amount sufficient, in the opinion of Publisher, to cover any potential liability and to reimburse Publisher for any contemplated expenses and damages, including court costs and attorneys’ fees and costs resulting therefrom. Writer hereby agrees to indemnify, defend, and hold Publisher harmless from and against any and all claims, costs and damages arising from any third party claims inconsistent with Writer's representations and warranties herein and incurred by Publisher in the settlement or adjudication of any claim in connection with the Composition. In addition to all of Publisher’s other rights and remedies in connection with such indemnity, all such costs and damages shall be deemed an advance against any royalties payable to Writer under this contract or any other publishing agreement between Writer and Publisher. Upon the final adjudication or settlement and payment of each and every claim hereunder, the balance of all monies withheld shall then be disbursed in accordance with the rights of the parties as provided hereinabove. 11. The term “Writer” shall be understood to include all the writers and composers of the Composition who shall be signatory to this agreement. If there be more than one, the covenants herein contained shall be deemed to be both joint and several on the part of the writers and composers and the royalties to be paid to Writer shall be due to all the writers and composers collectively, to be paid by Publisher in equal shares to each, unless a different division of royalties is specified in writing in the attached Schedule A. 12. Publisher shall have the right to assign this agreement and any of its rights hereunder to and delegate any of its obligations hereunder, in whole or in part, to any person, firm or corporation acquiring or otherwise succeeding to all or substantially all of Publisher’s publishing business or assets. Without limiting the generality of the foregoing, Publisher shall have the right to enter into subpublishing, administration, collection, print or other agreements with respect to the Composition with any person, firm or corporation for any one or more countries of the world. 13. This contract contains the entire understanding between the parties, and all of its terms, conditions and covenants shall be binding upon and shall inure to the benefit of the respective parties and their heirs, successors and assigns. No modification or waiver hereunder shall be valid unless the same is in writing and is signed by the party sought to be bound. 14. This contract shall be deemed to have been made in the State of [California] and its validity, construction and effect shall be governed by and construed under the laws and judicial decisions of the State of [California] applicable to agreements wholly performed therein. 15. This document contains important legal terms and rights that affect Writer, and Publisher has advised Writer to secure independent legal counsel. Writer hereby acknowledges that Writer has secured or had the opportunity to secure legal counsel to advise Writer as to the meaning of all of the terms and conditions of this agreement. Should Writer choose not to secure independent counsel, Writer acknowledges that Writer’s decision will have been made wilfully and knowingly. 16. All notices, statements and payments required or desired to be given hereunder shall be given by addressing same to the addresses of the respective parties hereinbelow set forth, or to such other address as either party may hereafter designate, by written notice, to the other party. Notices shall be in writing and shall be delivered either personally (to an officer if the addressee is a corporation), by the United States mails, certified or registered, postage prepaid, or by cable or telegraph, charges prepaid. Each notice shall be deemed served when delivered personally, or when deposited in the United States mail or in a telegraph or cable office. 17. The use of the singular in this agreement shall apply to and mean the plural where appropriate.
Assignment of Copyright [Song titles & writers inserted here] This assignment includes all extensions of said copyright, if any, that may be secured under the laws now and hereafter in force and effect in the United States or in any other country or countries, and includes all causes of action for infringement of copyright arising prior to the date of this assignment and all other rights and privileges which Writer had, has or ever might have in respect of said composition, including, without limitation, the right to receive all monies heretofore payable but unpaid, now payable or hereafter payable in respect of said composition. Royalty Provisions 1. (a) Seven cents ($.07) for each (b) Ten percent (10%) of the wholesale selling price upon each printed copy of each other arrangement and edition of the Composition, printed, published and sold in the United States and Canada by Publisher (or its licensees), for which payment has been received, after deduction of returns, except that in the event the Composition shall be used or caused to be used, in whole or in part, in conjunction with one or more other compositions in a folio, album or other publication, Writer shall be entitled to receive that proportion of said royalty which the Composition shall bear to the total number of compositions contained in such folio, album or other publication. (c) Publisher shall have the right to withhold a reasonable reserve in connection with such print income. 2. (a) From the digital exploitation of the Composition (including any and all digital streaming and/or downloading) on the ListenSmart.com website, “Writer’s Prorata Share of Ad Revenue.” For the purposes hereof, “Writer’s Prorata Share of Ad Revenue” as to each Composition shall mean an amount equal to the product of (i) fifty percent (50%) of all gross advertising revenue generated by the ListenSmart.com website and received by Publisher and (ii) a fraction, the numerator of which shall be the number of instances during the applicable quarterly accounting period that the Composition is downloaded by visitors to such website, and the denominator of which shall be the total number of instances during the same quarterly accounting period that all musical compositions (including the Composition) owned or co-owned by Publisher pursuant to standard songwriter Agreements such as this agreement, are downloaded by visitors to such website. For this purpose, each unique visitor to the website may only be counted once, regardless of how many times that visitor may download a particular composition. (b) Notwithstanding the foregoing, 3. Fifty percent (50%) of any and all net sums actually received (less any costs for collection, and less any third-party administration fees) by Publisher in the United States, which sums represent solely the so-called “publisher’s share” of public performance royalties earned in respect of the Composition in the United States and/or outside of the United States, it being understood that Writer shall look to his performing right society for payment of the so-called “writer’s share” of public performance royalties as set forth in paragraph 5 below. 4. Seventy-five percent (75%) of any 5. Writer shall receive his writer’s share of public performance royalties throughout the world directly from his own affiliated performing rights society and shall have no claim whatsoever against Publisher for any royalties received by Publisher from any performing right society which makes payment directly (or indirectly other than through Publisher) to writers, authors and composers. 6. Seventy-five percent (75%) of any and all net sums, after deduction of foreign taxes, actually received (less any costs for collection, and less any third-party administration fees) by Publisher in the United States from sales, licenses and other uses of the Composition in countries outside of the United States and Canada [other than public performance royalties as hereinabove mentioned] from collection agents, licensees, subpublishers or others, whether or not same are affiliated with, owned in whole or in part by, or controlled by Publisher. 7. Publisher shall not be required to pay any royalties on professional or complimentary printed copies of the Composition or copies of mechanical derivatives of the Composition which are distributed gratuitously to performing artists, orchestra leaders and disc jockeys or for advertising, promotional or exploitation purposes. 8. If the Composition does not now have lyrics, and lyrics shall hereafter be added by Publisher, the above royalties shall be divided equally between Writer on the one hand and the writer or writers of the lyrics on the other hand. 9. Except as herein expressly provided no other royalties or moneys shall be paid to Writer. In no event shall Writer be entitled to share in any advance payments, guarantee payments or minimum royalty payments which Publisher may receive in connection with any subpublishing agreement, administration agreement, collection agreement, licensing agreement or other agreement covering the Composition. ------------------ IP: Logged |
| #5
Sean Fenlon Administrator Posts: 206 |
posted 05-19-2000 01:15 PM
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PUBLISHING CONTRACT OPTION B: STANDARD SONGWRITER’S/CO-PUBLISHING CONTRACT 1. (a) In consideration of Writer's Prorata Share of Ad Revenue, as defined below, and for other good and valuable consideration, Writer hereby transfers and assigns to Publisher, its successors and assigns, one hundred percent (100%) of Writer’s interest in and to the original musical composition(s) written and composed by Writer set forth on Schedule “A” attached hereto (each such composition to be referred to herein as the “Composition”). Said assignment includes, without limitation, an undivided worldwide interest in the title, words and music thereof, all copyrights and registrations with respect thereto, and the exclusive right to secure copyrights and extensions and renewals of copyrights in the same and in any arrangements and adaptations thereof. If the Composition has previously been registered for copyright in the name of Writer or other songwriters, or otherwise if Publisher shall request, Writer shall deliver or cause to be delivered to Publisher an assignment of the appropriate interest therein, in the form attached hereto as Exhibit “A.” (b) Subject to paragraph 6 below and to Writer's prior approval as provided herein, Writer further grants to Publisher, its successors and assigns the exclusive and perpetual right, license, privilege and authority throughout the universe to administer and exploit the Composition, to print, publish, sell, dramatize, use and license any and all uses of the Composition, to execute in its own name any and all licenses and agreements whatsoever affecting or respecting the Composition, including but not limited to the right to: (i) perform and license others to perform the Composition publicly or privately, for (ii) make or cause to be made, and to license others to make, master records, transcriptions, soundtracks, pressings, and any other mechanical, digital, electrical or other reproductions of the Composition, in whole or in part, in such form or manner and as frequently as Publisher shall determine, including the right to synchronize the same with sound motion pictures and to use, manufacture, advertise, license or sell such reproductions for any and all purposes, including, without limitation, private and public performances, radio broadcast, television, sound motion pictures, wired radio, phonograph records, online media, digital download, streaming, and any and all other means or devices, whether now known or which may hereafter come into existence; (iii) print, publish and sell, and to license others to print, publish and sell, sheet music, orchestrations, arrangements and other editions of the Composition in any and all forms, including, without limitation, the inclusion of any or all of the Composition in song folios, compilations, song books, mixed folios, personality folios and/or lyric magazines with or without music; and (iv) Any and all other rights of every kind and nature now or hereafter existing in the Composition under and by virtue of any common law rights and all copyrights and renewals and extensions thereof, including the grand and small performance rights. (c) (i) Writer shall keep Publisher advised of Writer’s current address, email and contact information at all times. Approval requests shall be submitted to Writer in the manner most practical, timely and efficient based on the urgency of the request and in accordance with the contact information provided by Writer, including, without limitation, by email. In the event that Writer does not respond to a request submitted by Publisher to a last known current contact destination within five (5) days of Publisher’s initial request, then Writer’s approval shall be deemed to have been given. (ii) Notwithstanding the foregoing, Publisher agrees to issue any and all licenses in respect of the Composition that are reasonably requested by Writer. Further, notwithstanding the foregoing, Writer acknowledges the importance of prompt response to requests for routine background film and television synchronization licenses and the fact that it may be impractical for Publisher to secure Writer's prior consent with respect to such requests. Accordingly Writer hereby grants to Publisher its prior approval with respect to any and all such requests for routine background film and television synchronization uses that are directed to Publisher, as well as for routine statutory rate 2. Writer hereby warrants and represents that (a) the Composition is an original work and contains no socalled “samples” and that neither the Composition nor any part thereof infringes upon the title, literary or musical property or copyright of or in any other work nor the statutory, common law or other rights (including rights of privacy) of any person, firm or corporation; (b) Writer is the sole writer and composer and the sole owner of the Composition and of all the rights therein; (c) Writer has not sold, assigned, transferred, hypothecated or mortgaged any right, title or interest in or to the Composition or any part thereof or any of the rights herein conveyed; (d) Writer has not made or entered into any contract with any other person, firm or corporation affecting the Composition or any right, title or interest therein or in the copyright thereof that would interfere with the rights granted to Publisher herein; (e) no person, firm or corporation other than Writer has or has had claims or has claimed any right, title or interest in or to the Composition or any part thereof, any use thereof or any copyright therein; (f) the Composition has never been published; and (g) Writer has the full right, power and authority to make this present instrument of sale and transfer. 3. In consideration of this contract and the rights and interests granted to Publisher herein, Publisher agrees to pay to Writer, the royalties in respect of the Composition in accordance with Exhibit "B" attached hereto. 4. Within forty-five (45) days after the last days of each accounting quarter, Publisher will prepare and furnish quarterly statements to Writer. Each such statement shall be accompanied by payment of any and all sums shown to be due thereby. Any and all objections, questions or disputes concerning any such statement shall be waived by Writer unless such written objection is received by Publisher within one (1) year after Publisher’s remittance of such statement to Writer. 5. Writer hereby grants to Publisher the perpetual right to use and publish and to permit others to use and publish Writers name (including any professional name previously or hereafter adopted by Writer), likeness and biographical material, or any reproduction or simulation thereof, and the title of the Composition in connection with the printing, sale, advertising, distribution and exploitation of music, folios, recordings, performances, and otherwise concerning the Composition, and for any other purpose related to the business of Publisher, its associates, affiliates and subsidiaries, or to refrain therefrom. 6. In the event that after the date which is twenty-four (24) months after the date hereof, a particular Composition shall not: (a) have been licensed for a fee for use in a television production, motion picture, commercial advertisement, or commercial phonorecord release for distribution by (i) a so-called “major” record label (as that phrase is commonly understood in the music business) (“Major”), (ii) a label distributed by a Major, or (iii) an independent record label that is recognized nationally (in the country of origin); or (b) have earned at least Two Thousand Dollars ($2,000) of Writer’s Prorata Share of Ad Revenue; or (c) have earned at least Seven Thousand Dollars ($7,000) of aggregate gross royalties or other income (including, without limitation, any ad revenue, royalties, performance income or other sums reasonably expected by Publisher in its best business judgment to have been earned but not yet paid), then, provided that Writer requests same in writing within one hundred twenty (120) days after the end of such twenty-four (24) month period, all right title and interest of Publisher acquired from Writer with respect to such Composition shall revert to Writer at the end of the calendar quarter during which Writer's written notice is received by Publisher, subject to the terms and conditions of any license issued or promised to be granted by Publisher as of the date Publisher receives such notice. Publisher shall thereafter have no interest in and to such Composition. Notwithstanding the foregoing, Publisher shall continue to have the right to collect and retain any royalties and/or income earned from the exploitation of the Composition through the effective date of reversion, whether or not paid as of such date, subject to payment of royalties to Writer hereunder. 7. Writer hereby waives any and all claims which Writer has or may have against Publisher, its associates, affiliates and subsidiaries by reason of the fact that the title of the Composition may be the same as or similar to that of any other musical compositions heretofore or hereafter acquired by Publisher. 8. Writer hereby authorizes and empowers Publisher as Writer’s true and lawful attorney to register and/or renew, pursuant to law, for and in the name of Writer the copyright of the Composition, and to execute and deliver in the name of Writer a formal assignment of each copyright and/or renewal copyright to Publisher, for its own use and benefit, subject to the payment of royalties to Writer as herein provided. 9. Writer shall not transfer or assign this contract or any interest therein or any sums that may be or become due hereunder without the prior written consent of Publisher, and no purported assignment or transfer in violation of this restriction shall be valid to pass any interest to the assignee or transferee. 10. Publisher may take such action as it deems necessary, either in Writer’s name or in its own name, against any person to protect the rights and interest acquired by Publisher hereunder. Writer will, at Publisher’s request, cooperate fully with Publisher in any controversy which may arise or litigation which may be brought concerning Publisher’s rights and interests acquired hereunder. Publisher shall have the right, in its absolute discretion, to employ attorneys and to institute or defend any action or proceeding and to take any other proper steps to protect the right, title and interest of Publisher in and to the Composition and every portion thereof, and to settle, compromise or in any other manner dispose of any matter, claim, action or proceeding and/or satisfy any judgment that may be rendered in connection therewith, in any manner as Publisher in its sole discretion may determine. Any legal action brought by Publisher against any alleged infringer of the Composition shall be initiated and prosecuted by Publisher, and if there is any recovery made by Publisher as a result thereof, after deduction of the expense of litigation, including but not limited to attorneys’ fees and court costs, a sum equal to fifty percent (50%) of such net proceeds shall be paid to Writer. If a claim is presented against Publisher with respect to the Composition, and because thereof, Publisher is jeopardized, Publisher shall have the right thereafter, until said claim has been fully adjudicated or settled, to withhold any and all royalties that may be or become due with respect to the Composition pending the final adjudication or settlement and payment of such claim, in an amount sufficient, in the opinion of Publisher, to cover any potential liability and to reimburse Publisher for any contemplated expenses and damages, including court costs and attorneys’ fees and costs resulting therefrom. Writer hereby agrees to indemnify, defend, and hold Publisher harmless from and against any and all claims, costs and damages arising from any third party claims inconsistent with Writer's representations and warranties herein and incurred by Publisher in the settlement or adjudication of any claim in connection with the Composition. In addition to all of Publisher’s other rights and remedies in connection with such indemnity, all such costs and damages shall be deemed an advance against any royalties payable to Writer under this contract or any other publishing agreement between Writer and Publisher. Upon the final adjudication or settlement and payment of each and every claim hereunder, the balance of all monies withheld shall then be disbursed in accordance with the rights of the parties as provided hereinabove. 11. The term “Writer” shall be understood to include all the writers and composers of the Composition who shall be signatory to this agreement. If there be more than one, the covenants herein contained shall be deemed to be both joint and several on the part of the writers and composers and the royalties to be paid to Writer shall be due to all the writers and composers collectively, to be paid by Publisher in equal shares to each, unless a different division of royalties is specified in writing in the attached Schedule A. 12. Publisher shall have the right to assign this agreement and any of its rights hereunder to and delegate any of its obligations hereunder, in whole or in part, to any person, firm or corporation acquiring or otherwise succeeding to all or substantially all of Publisher’s publishing business or assets. Without limiting the generality of the foregoing, Publisher shall have the right to enter into subpublishing, administration, collection, print or other agreements with respect to the Composition with any person, firm or corporation for any one or more countries of the world. 13. This contract contains the entire understanding between the parties, and all of its terms, conditions and covenants shall be binding upon and shall inure to the benefit of the respective parties and their heirs, successors and assigns. No modification or waiver hereunder shall be valid unless the same is in writing and is signed by the party sought to be bound. 14. This contract shall be deemed to have been made in the State of [California] and its validity, construction and effect shall be governed by and construed under the laws and judicial decisions of the State of [California] applicable to agreements wholly performed therein. 15. This document contains important legal terms and rights that affect Writer, and Publisher has advised Writer to secure independent legal counsel. Writer hereby acknowledges that Writer has secured or had the opportunity to secure legal counsel to advise Writer as to the meaning of all of the terms and conditions of this agreement. Should Writer choose not to secure independent counsel, Writer acknowledges that Writer’s decision will have been made knowingly and wilfully. 16. All notices, statements and payments required or desired to be given hereunder shall be given by addressing same to the addresses of the respective parties hereinbelow set forth, or to such other address as either party may hereafter designate, by written notice, to the other party. Notices shall be in writing and shall be delivered either personally (to an officer if the addressee is a corporation), by the United States mails, certified or registered, postage prepaid, or by cable or telegraph, charges prepaid. Each notice shall be deemed served when delivered personally, or when deposited in the United States mail or in a telegraph or cable office. 17. The use of the singular in this agreement shall apply to and mean the plural where appropriate. Assignment of Copyright [Song Titles & Writer’s Names Inserted Here] This assignment includes all extensions of said copyright, if any, that may be secured under the laws now and hereafter in force and effect in the United States or in any other country or countries, and includes all causes of action for infringement of copyright arising prior to the date of this assignment and all other rights and privileges which Writer had, has or ever might have in respect of said composition, including, without limitation, the right to receive all monies heretofore payable but unpaid, now payable or hereafter payable in respect of said composition. Royalty Provisions (b) Ten percent (10%) of the wholesale selling price upon each printed copy of each other arrangement and edition of the Composition, printed, published and sold in the United States and Canada by Publisher (or its licensees), for which payment has been received, after deduction of returns, except that in the event the Composition shall be used or caused to be used, in whole or in part, in conjunction with one or more other compositions in a folio, album or other publication, Writer shall be entitled to receive that proportion of said royalty which the Composition shall bear to the total number of compositions contained in such folio, album or other publication. (c) Publisher shall have the right to withhold a reasonable reserve in connection with such print income. (b) Notwithstanding the foregoing, as to any musical composition in which Publisher shall have acquired one hundred percent (100%) of the copyright interest therein pursuant to a songwriter agreement (as opposed to a fifty percent (50%) co-publishing copyright interest) (a “Wholly Acquired Composition”), then for the purposes of calculating the foregoing fraction, the number of instances that a Wholly Acquired Composition has been selected for download shall be multiplied by two (2). For purposes of clarification and without limiting the foregoing, if the total number of downloads of all Wholly Acquired Compositions for a particular quarterly accounting period is four hundred fifty thousand (450,000), and the total number of downloads of all other musical compositions owned or coowned by Publisher for that period is five hundred fifty thousand (550,000), then, if the Composition is downloaded one thousand five hundred (1,500) times in that period and the total amount of eligible Ad Revenue is $500,000, Writer’s Prorata Share of Ad Revenue as to that particular Composition for that period shall be One Thousand Thirty-Four Dollars and forty-Eight cents ($1,034.48) 19. Fifty percent (50%) of any and all net sums actually received (less any costs for collection, and less any third-party administration fees) by Publisher in the United States from the exploitation in the United States and Canada by licensees of Publisher of mechanical rights, electrical transcription and reproduction rights, motion picture and television synchronization rights, printing rights (except as provided in subparagraphs 1(a) and 1(b) above), and all other rights (excepting public performing rights, and except as to digital exploitation set forth in paragraph 2 above) in the Composition, whether or not such licensees are affiliated with, owned in whole or in part by, or controlled by Publisher. 20. Writer shall receive his writer’s share of public performance royalties throughout the world directly from his own affiliated performing rights society and shall have no claim whatsoever against Publisher for any royalties received by Publisher from any performing right society which makes payment directly (or indirectly other than through Publisher) to writers, authors and composers. 21. Fifty percent (50%) of any and all net sums, after deduction of foreign taxes, actually received (less any costs for collection, and less any third-party administration fees) by Publisher in the United States from sales, licenses and other uses of the Composition in countries outside of the United States and Canada [other than public performance royalties as hereinabove mentioned] from collection agents, licensees, subpublishers or others, whether or not same are affiliated with, owned in whole or in part by, or controlled by Publisher. 22. Publisher shall not be required to pay any royalties on professional or complimentary printed copies of the Composition or copies of mechanical derivatives of the Composition which are distributed gratuitously to performing artists, orchestra leaders and disc jockeys or for advertising, promotional or exploitation purposes. 23. If the Composition does not now have lyrics, and lyrics shall hereafter be added by Publisher, the above royalties shall be divided equally between Writer on the one hand and the writer or writers of the lyrics on the other hand. 24. Except as herein expressly provided no other royalties or moneys shall be paid to Writer. In no event shall Writer be entitled to share in any advance payments, guarantee payments or minimum royalty payments Publisher may receive in connection with any subpublishing agreement, administration agreement, collection agreement, licensing agreement or other agreement covering the Composition. ------------------ IP: Logged |
| #6
Sean Fenlon Administrator Posts: 206 |
posted 05-19-2000 01:15 PM
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GENERAL FAQ When can we execute the publishing contracts and begin revenue sharing? Although we have now released the beta publishing contracts, we will not be executing the any contracts until we finish our “Beta” phase and officially launch. When will ListenSmart.com complete its “Beta” phase and officially launch? As soon as possible! Although we would love to announce an exact date for our official launch, it would be irresponsible for do so at this time. We are in the final stages of completing several key components necessary for our system to function including publishing administration, capital funding, hiring key staffers, and advanced download tracking functionality. It is critical that we complete these components so that we may be an effective music publisher. We know that the wait can be frustrating. Please believe us when we tell you that no one is more anxious to put all these components in place than we are. At this time, however, we still prefer to keep everyone posted as to our development cycle, and not promise any date until I am 100% confident that we will meet our promise. We have not made one promise that have not kept, and I plan to keep it that way. Is there a minimum guaranteed amount per download? No. Unfortunately, there is just no accurate way to predict the total number of downloads, thus it would be irresponsible for us to commit to a minimum amount per download. Will there be a minimum guaranteed amount of advertising revenue distributions? Yes. We will guarantee a minimum distribution amount to the artists. The exact amount will be announced before we officially launch. I have questions about the contract. Who or where should I ask? Firstly, we would always encourage everyone to consult with an experienced music attorney to best understand the pros and cons of the publishing relationship that will be offered by ListenSmart.com. However, we do understand that this can be cost-prohibitive for some artists. Thus, we will do our very best to answer each and every question or concern accurately and directly. For the benefit of others, we suggest you post your questions directly to the bulletin board. By next week, we will try to compile all the questions into our (ongoing) FAQ. When do we get to meet the music publishing staff and partners? We will announce the key members or our music publishing staff and our strategic partners when we officially launch. I believe that you will all be very excited to hear whom we will be working with. What’s the point of posting the publishing contracts before the official launch? Our objective is to have every question or concern artists may have about the publishing relationship answered directly and accurately. Thus, we have posted the publishing contract on the BB for as long as it takes to allow everyone to understand and comment on its meaning. This will also give us the chance to make any adjustments if necessary. Any reasonable request from the artist community to adjust any of the legal language can be considered prior to its official activation. We say “reasonable” because there are, however, some provisions that just cannot be subject to change. Is this an “exclusive” contract? ListenSmart.com offers a non-exclusive agreement to the artists that post their music to our site. Thus, it is extremely important that artists understand that the music publishing contract offered to artists who wish to become “revenue sharing,” does not in any way affect the terms of this non-exclusive agreement. Regardless of the publishing contract, the artists will still maintain control of their music. Thus, for example, “revenue sharing” artists are free to post their songs on other sites (or we'll do it for them using our OmniPost service), make and sell their own recordings, allow the use of their music as background, etc. This type of freedom and flexibility is often referred to as a non-exclusive agreement because artists can still allow other entities besides ListenSmart.com the use their music. There is, however, an “exclusive” component to our publishing relationship in that once ListenSmart.com is the music publisher for one of the songs, the artist cannot sign another music publishing contract with a different music publishing company for that individual song, for the term of the contract. Although often misleading, the publishing industry has developed a convention of referring to the percentage of copyright ownership in a song as being the same as the percentage of ownership of the “music publisher’s share,” even though the “music publisher’s share only represents 50% of the whole pie. Thus, by assigning the entire “music publisher’s share” (50% of the whole pie) to a publisher, you are said to have assigned 100% of your copyright ownership. By assigning half of the “music publisher’s share” (25% of the whole pie) to a publisher, you are said to have assigned 50% of your copyright ownership. Why does the contract Option A that is described as a 75/25 split of all royalties (the whole pie) use the language, “Writer hereby transfers and assigns to Publisher, its successors and assigns, an undivided fifty percent (50%) of Writer’s interest in and to the original musical composition(s)” The answer is the same as above. However, please note that with regards to the publishing contract options offered by ListenSmart.com, there is no functional difference in the language of the agreements beyond the actual percentages of royalties that will be distributed to the artists by ListenSmart.com as determined by their contract choice. Is ListenSmart.com “buying” my song? No, you remain the writer/composer to your song. However, you are assigning a portion of your title in the song to ListenSmart.com in exchange for performing the role of music publisher. How will I get paid? Within six weeks of the end of each quarter, ListenSmart.com will distribute royalties collected on behalf of the artist, as well as the artist’s pro-rata share of advertising revenue as determined by their download count. Distributions will be sent within six weeks of the end of each quarter for amounts that exceed $50. Amounts less than $50 will be carried forward into the next quarter. Performance royalties will be paid directly to the artist by their respective Performing Rights Organizations (i.e. BMI, ASCAP, SESAC, etc.). Can ListenSmart.com sell or transfer its publishing interests in my song to another publisher? ListenSmart.com cannot sell or transfer any single song or artist to another music publisher. ListenSmart.com does retain the right to transfer all (or significantly all) of its publishing catalog to another music publishing entity. Do I have the right to cancel the contract (i.e. is there a “reversion clause”)? In the event that ListenSmart.com is unable to perform a certain measurable level of success for any one song within twenty-four months of the contract date, you have the right to terminate the publishing agreement, and all rights will revert back to you. The contract defines the measurable level of success as at least one of the following: Are artists required to become members of PROs? Artists are not required to become members of a Performance Rights Organization, however, it is strongly encouraged that that you may collect all the appropriate performance royalties that you would be due. What PROs is ListenSmart.com affiliated with? ListenSmart.com is currently affiliated with BMI (as ListenSmart Music Publishing), ASCAP (as Always ListenSmart), and has a publisher’s application pending with SESAC. How do I affiliate with ASCAP, BMI or SESAC? You can affiliate by contacting the societies directly and requesting a writer's package. The packages contain information about the organization, the application kit, a W-9 tax form and the exclusive membership agreement. There are no application fees, but ASCAP will bill you a $10 fee for annual membership. You choose one society and affiliate with it exclusively, so research the societies before you commit yourself. All three have extensive websites for browsing, or contact the organizations and request information. The membership office contact information is as follows: ASCAP BMI SESAC, INC. Will mechanical royalties be paid on ListenSmart.com CDs? When ListenSmart.com rolls out its CD production program, ListenSmart.com will distribute a 50% royalty to the appropriate artist. The agreement that we will use for participation in the CD production program will stipulate the writer’s share of any mechanical royalty will be included in the 50% distribution. Thus, in effect, it will be paid, but it is already included in the artists 50% CD royalty. If I have a song on a DAM CD at MP3.com and I sign a music publishing contract with ListenSmart.com, will I or MP3.com need to pay a mechanical royalty on each sale? No. There are no mechanical royalty requirements for MP3.com’s DAM CDs. Where can I find more information on publishing terminology? BMI Guide to Publishing Terminology ------------------ IP: Logged |
| #7
JimmyStewart Guru Posts: 236 |
posted 05-19-2000 01:30 PM
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Thanks for posting this Sean... I assume this is what everyone has been waiting for? READ!!! ------------------ [This message has been edited by JimmyStewart (edited 05-19-2000).] IP: Logged |
| #8
BaptistDeathRay Guru Posts: 337 |
posted 05-19-2000 01:38 PM
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Do the artists get any input into how their songs are used in terms of publishing. Say, for example, that an artist named, oh "Bruce Springsteen" has a popular song about a Vietnam Vet, called "Born in the USA". The Republican Party wants to use this song as part of a candidate's presidential re-election campaign, for use in tv commercials and radio spots. The artist, however, doesn't feel that is appropriate use of his work since it misrepresents the song entirely. If that artist were signed on to Listensmart,and the Republican Party tried to deal with Listensmart in order to use this song, would the artist be able to veto such a deal? Just curious. ------------------ IP: Logged |
| #9
Andrew Hickey Guru Posts: 412 |
posted 05-19-2000 01:42 PM
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Couple of points (just first thoughts): 1) We need a minimum guaranteed payment per download - otherwise artists could be in the same position as they are with IUMA, except the difference would be we'd have signed away our rights 2) There absolutely needs to be a clause stating that should Listensmart's business practices or services change then the artist can remove themself from all obligations. If listensmart for example closes down its site totally and concentrates on promoting CDs of four or five artists then we should have the option to get out. Also if listensmart fails to perform as it might reasonably be expected to (for example if the site is down for 5 or more consecutive days, or if the site is down for more than a month total in a year) then artists should be able to get their rights back. 3) We need to have clauses asserting the artists' moral rights - in particular that no changes can be made to the piece without artists' consent, and that artists should have refusal over any use of their work in commercials. There is no way for example that I would want my music used in firearm commercials, or in broadcasts for certain political organisations. 4) I would like an assurance that the 'no mechanicals' thing applies to musicbuilder VMS CDs as well as MP3C ones. ------------------ IP: Logged |
| #10
Davey Boy Crocky Guru Posts: 253 |
posted 05-19-2000 02:01 PM
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quote: If I have my own small label to produce CD's of my own tunes (glass mastered and put into distribution), would I owe Listensmart mechanicals? ------------------ Davey Boy Crocky's Solo Project IP: Logged |
| #11
Andrew Hickey Guru Posts: 412 |
posted 05-19-2000 02:04 PM
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Legally you would have to by those contract terms. ------------------ IP: Logged |
| #12
Davey Boy Crocky Guru Posts: 253 |
posted 05-19-2000 02:10 PM
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Option A vs Option B: At first inspection, it seems that each download in Option A would net the artist .75DLC (.75 of a Download Credit or 75% of 1 DLC). Under option B, the artist would get 1DLC (50% of 2DLC). I don't see any other difference yet between the two options. This seems very weird to me. ------------------ Davey Boy Crocky's Solo Project IP: Logged |
| #13
Davey Boy Crocky Guru Posts: 253 |
posted 05-19-2000 02:16 PM
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quote: What is the definition of published? If I have released the song on other OMD's, does this constitute publishing? ------------------ Davey Boy Crocky's Solo Project IP: Logged |
| #14
DoctorOakroot Guru Posts: 562 |
posted 05-19-2000 02:17 PM
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I just finished reading the option A contract... looks pretty good to me. BDR, According to 1(b) and 1(c)(i) LS has to have your consent to authorized a licensed, except 1(c)(ii) assumes consent for routine TV, film, and mechanical licensing. Davey, as I read 1(c)(ii), you could direct LS to issue a free mechanical license to you for your CD manufacturing project... this would apply to musicbuilder as well... In other words, Seans exemption for mp3c DAM CDs is more general than that. To cover my ass, I'm not a lawyer and the above does not constitute legal advise. Dr O ------------------ IP: Logged |
| #15
BaptistDeathRay Guru Posts: 337 |
posted 05-19-2000 02:19 PM
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DBC, I think the difference comes in when you license your music out for people to use (in movies, whatever). Under option A, you get 75% of a licensing fee for using your music in some other work, but less money from banner ads. Under option B, you get 50% of a licensing fee for using your music in some other work, but more money from banner ads. I think. Then again, I Am Not A Lawyer. ------------------ IP: Logged |
| #16
DoctorOakroot Guru Posts: 562 |
posted 05-19-2000 02:23 PM
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Davey, I think the revenue sharing is separate from the publishing split. What I mean by this is under the 50/50 deal, you get twice as much per download as under the 75/25 deal. This makes sense on the backend, where LS picks up twice as large a royalty for outside mechanicals, synch, and performance. Dr O ------------------ IP: Logged |
| #17
Davey Boy Crocky Guru Posts: 253 |
posted 05-19-2000 02:25 PM
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The contract states Listensmart gets the rights to use my name, likeness, bio, etc for promotion in perpetuity. It seems like this right should be recinded if the publishing contract is terminated for all songs the Writer is involved in. Also, it looks as though the only time that the contract can be reverted is 24 months after the contracts initiation. Does this opportunity exist only at the 24 month mark, or does it exist every 24 months with respect to the Publishers performance over that 24 month period? ------------------ Davey Boy Crocky's Solo Project IP: Logged |
| #18
DoctorOakroot Guru Posts: 562 |
posted 05-19-2000 02:28 PM
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I'm also concerned about having only a 120 day window after 24 months to request reversion  ------------------ IP: Logged |
| #19
MAGriff Guru Posts: 299 |
posted 05-19-2000 02:28 PM
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problem #1 no opt-out clause - there has to be a standing clause that treats any and all attempted revisions of the contract as renegotiation (read: cannot be forcibly imposed without agreement from both parties) problem #2 ownership of copyrights: there needs to be very clearly stated that the transfer of copyright ownership (in whole or in part) is temporary - the duration of which is limited to the duration of this contract (which, as stated earlier in the contract, is for a minimum of 2 years, after which it becomes self-perpetuating until one or both parties opt out in writing problem #3 unique visitor restriction problem #4 vague language about the interaction of this contract with material being placed on other sites... do I have to split (for example) my P4P from mp3c with LS? (I'm not exceptionally fond of that idea... but then I'm probably going exclusive with the vast majority of my material anyhow... ------------------ IP: Logged |
| #20
Davey Boy Crocky Guru Posts: 253 |
posted 05-19-2000 02:44 PM
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OK - I think I see the difference between Option A and B now. Doctor, 1c(ii) is vague. What is "reasonable"? What if I happen to sell 100,000 copies through my label? ------------------ Davey Boy Crocky's Solo Project IP: Logged |
| #21
pmarinovich Guru Posts: 378 |
posted 05-19-2000 02:44 PM
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Are we having fun yet? ------------------ IP: Logged |
| #22
DoctorOakroot Guru Posts: 562 |
posted 05-19-2000 02:48 PM
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quote: I agree, it is vague... here's the good news: since LS wrote the contract, vagueness is interpreted in the artist's favor, i.e. burden of proof is on LS. Pete, yeah, I'm having fun ------------------ IP: Logged |
| #23
MAGriff Guru Posts: 299 |
posted 05-19-2000 02:50 PM
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as much as I'd like to belive quote: I'd much rather see the language on these points clarified... it's amazing what a team of highly paid lawyers can prove... (No offense Sean - it's reality...) ------------------ IP: Logged |
| #24
Davey Boy Crocky Guru Posts: 253 |
posted 05-19-2000 02:55 PM
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Pete, All things considered, I'd rather be writing a Haiku about my friend's music. But y'know, contracts are so hard to put into Haiku format. ------------------ Davey Boy Crocky's Solo Project IP: Logged |
| #25
bobp Guru Posts: 602 |
posted 05-19-2000 03:00 PM
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I have a lot of reading to do. Wouldn't a 12 month contract life be more "artist friendly"? Bob Porri ------------------ [This message has been edited by bobp (edited 05-19-2000).] IP: Logged |
| #26
TheBassDude Guru Posts: 348 |
posted 05-19-2000 03:18 PM
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It does look like everyone has some reading to do... And I would advise everyone to have an attorney look it over before you sign. Having said that, Thanks Sean!!! I appreciate the obvious thought and care put into this effort! ------------------ [This message has been edited by TheBassDude (edited 05-20-2000).] IP: Logged |
| #27
dustyw1 Guru Posts: 536 |
posted 05-19-2000 04:52 PM
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Bob quote: Actually, a shorter term would be extremely unfair to both sides. A good publisher doesn't just take a bunch of songs and put them somewhere where they might be available. There's promotion and building the artist up - any number of processes - and they all take time. It might take a year or more before an artist/writer begins to click. If, at the end of a year, the artist decides to take the songs and sign with someone else the publisher (LS) is out for a fair amount of money/time. I realize that for many younger artists 2 years may seem like forever but it's really not an unrealistic time frame for doing a proper job. My 2 cents anyway. Dusty ------------------ IP: Logged |
| #28
Saint Cheez Guru Posts: 244 |
posted 05-19-2000 07:18 PM
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I was just wondering when LS became a publisher instead of a quote catelog music website? For instance, I believe that MP3.com did describe themselves as a catelog music website, even though they do have the DAM CD program. If LS is in fact a catelog "free" music website, then most likely those songs will never get sold via a CD program by a quote publisher. I am also wondering if the present standard contract with the "royalty free" clause be null and void, when the new contract comes out. I just want to remind everyone that MP3.com earned only 5% of total revenues on DAM CD sales most of which were bought by artists themselves. If LS does decide to "exploit" an artist's music, what type of artist would they be promoting and why, or how many would qualify by LS's standards? Is there any guarantees that LS will not use their own hand-picked artists to perform your music using your name? Case in point, Big Sky's name was used by MP3.com for another group. If they do this with most or all of your songs, then you will not be paid. What are LS's plans to get artists from point A to point B in the promotions scheme of things? One clause which was particularly worrisome was the one which stated that the artist would not get paid on sub-contracts which was not clearly defined. To my thinking any time the contract states that the artists will NOT be paid under certain circumstances, a red flag pops up. I can not conceive any ligimate circumstance, when the artist should NOT be paid in the "exploitation" of his song. A suggestion: upload these docs to LS website and organize it better so that an artist can easily follow the logic of your method. I have done some programming in the past, and I always get upset when info is not presented in a logical and orderly fashion. HTML should make linking docs fairly painless and easy. For instance, lets say an artist is not interested in earning money from his music and wants to make his music freely available to the public and does not care if the site makes money off of his music. Option A for this type of artist would refer to LS's present stardard contract. Best wishes, St. Cheez
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| #29
BaptistDeathRay Guru Posts: 337 |
posted 05-19-2000 07:40 PM
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One thing I guess to keep in mind is that this contract isn't for Listensmart to act as a label per se, so expectations of them actually going out and promoting bands in a manner that we'd think of it are probably unrealistic. It would be reasonable to expect that they'd try and promote songs, and genres, and the like, but usually it's a label that does actual band promotions and band development, isn't it? So those of you with more experience... what would it be "reasonable" to assume that Listensmart would do for a band, when acting as a publisher, and what would be "unreasonable" ? Both categories are important, IMHO. ------------------ IP: Logged |
| #30
CBH3 Records Guru Posts: 487 |
posted 05-19-2000 08:51 PM
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Obviously there is a lot to read and digest. My cable modem got fried by lightning so I've been fading in and out and finally switched to dial up (doh!) I have a few points I'd like to make which are isolated ideas. I think a lot of you have brought up good points and this is just some extra ideas/questions to throw out... 1. What happens to this whole publishing concept when this site approaches saturation? I define saturation as there being too many artists on the site. Sean will have to define how many is "too many". What will happen to the charts? Will there be 10,000 songs in each major genre? How will LS be able to promote all the bands in a fair manner if there are 10,000 bands or more on this site? 2. My views on contracts using "perpetual": Let's say John.Q.Rock.Band signs with LS, LS lands a deal for them for a movie soundtrack. The film producers use the music, edit the film launch it, show it in theatres, second run houses, and then it goes to video. At any point along this path, if John.Q.Rock.Band wants to cancel their deal with LS, then LS loses the right to the music, and the film producers can't show the film and have to re-edit it? What if it's on video already? My point is that once you sign a deal for something like a movie, you need to be in it for the long haul. The only exception I see is that LS tells you that the film is about bunny rabbits and it turns out to be "Rambo part 9: Making the Bunny Pay!" You claim false representation and hopefully there is a clause for getting out... CBH3 IP: Logged |
| #31
Saint Cheez Guru Posts: 244 |
posted 05-19-2000 10:22 PM
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prorata: in proportion; according to a rate. consideration: payment for work done; compensation; something given in return as a recompense (repay, reward, compensate); in other words, the payment is enough to make an informal promise legally binding. I suspect that if you accept the check, then you agreed to the amount paid and can not ask for more. For instance, you could write on a check, this is my last offer. If the other person cashes the check, then he agreed to the amount you paid. Now, most of the written piece clearly states what rights and powers you are giving to LS. "without limitation" means they can pretty much do what LS wants and deal with whoever they want. "exclusive" is the limitations they are placing on you. You can only work with them. In my opinion, "non-exclusive" right is not being given to the artist. Upfront, my first impression of Sean and his contract is unfairness in relation to the artist. He is asking for "unlimited" powers and rights, while placing "limits" on you. Are you really being treated like an equal "partner"? My other impression is that he is purposedly confusing the contract by separating portions like stating "subject to paragraph 6 below". This statement is not too clear. You could very easily endup reading the wrong paragraph. How do you know for certain? Why did they not include paragraph 6 in that statement? Too lazy. Not enough room to fit it in. Or, to confuse the issues. Anyway, I do not like that stuff. In an HTML page, they could have easily linked to paragraph 6. No confusion. Right? Just an opinion or opinions, St. Cheez ------------------ [This message has been edited by Saint Cheez (edited 05-19-2000).] IP: Logged |
| #32
PFmgmt Guru Posts: 1132 |
posted 05-19-2000 10:45 PM
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Cheez, Where's DCD when we need him, huh? He would love to tear into this. course his answers could e as confusing as the contract(s) themselves.HaHa ------------------ IP: Logged |
| #33
Saint Cheez Guru Posts: 244 |
posted 05-19-2000 11:07 PM
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http://www.music-law.com/contractbasics.html For those interested in understanding the idea of "royalites" and why the publisher wants to be "exclusive" in contracts, read the above... Oh, how I love when someone uses plain straightforward talk! St. Cheez ------------------ IP: Logged |
| #34
Saint Cheez Guru Posts: 244 |
posted 05-19-2000 11:19 PM
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http://www.music-law.com/publishing.html Well, remember how Sean described his website as a "catelog" music website. Now, he is describing the site as a "publishing" site. Read the above for more on this. Apparently, being a "publisher" has alot to do with your/their? copyright. St. Cheez ------------------ IP: Logged |
| #35
CBH3 Records Guru Posts: 487 |
posted 05-20-2000 12:34 AM
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Cheez, In all fairness, please reference the quote about a catalogue site. I don't remember that. This site launched 3/1/00 and right from the start, they were talking about the upcoming revenue sharing and publishing. I'm not trying to takes sides here, but to claim that Sean recently switched goals is untrue. Unfortunately, I searched this site, Artists area, all dates, for "publishing". I got a lot of hits but the ones from early march are "not found" when you click on them. LS: PLEASE DO NOT DELETE THREADS. They take up a miniscule amount of space because they are ASCII !!! Old threads are vital sometimes, and now they are gone. Whoever asked that we delete threads to keep this place from being like MP3c has no clue. CBH3 ------------------ IP: Logged |
| #36
PFmgmt Guru Posts: 1132 |
posted 05-20-2000 01:20 AM
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CB, A slight correction. Mp3.con has a dossier on me of my past posts. Remember when Paradise whipped one out from many months ago in his effort to discredit and humiliate me? He made the statement that mp3.con had my past posts stored. Mp3.con (Gestapo Division) This attempt plus posting false staements about me were my clue that mp3.con or at least Paradise considers that I am some sort of threat to them. I cannot figure out why. I don't have a following. No need to comment on all of this here. It does make one realize that OMDs should be taken seriously. One never knows what they will turn into. This gets right back to the topic at hand, here, right now. ------------------ IP: Logged |
| #37
Saint Cheez Guru Posts: 244 |
posted 05-20-2000 01:51 AM
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"In all fairness, please reference the quote about a catalogue site." Sean wrote a 50 page description of the plan for LS site. It was not an actual post but rather in Adobe format document. In the description, he mentioned that LS was a catelogue site and was not really geared to selling CDs however they would offer this service also. In this document, he stated that another music site would be selling music CDs. I do not remember hearing the name of the other site though, nor do I remember how an artist would go from LS to this other site to get his music sold. In my opinion, the plan of the site changed just recently. It is now a catelogue music website, as well as a "publisher", because of the lucrative nature of the title. However, I see a definite conflict here that is offering free music and selling music CDs. That is the problem which MP3.com ran into and the reason why DAM CD revenues were only 5% of total revenues. In my opinion, LS is a catelogue website which offers free music. The standard contract right now does not offer royalty payments. I suppose that LS is receiving ad revenue, but at the moment is not paying the artists. And that is what I see right now. St. Cheez ------------------ IP: Logged |
| #38
Saint Cheez Guru Posts: 244 |
posted 05-20-2000 02:27 AM
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Here are some of my general impressions of the contract so far: 1. The "publisher" does seem to be claiming "ownership" of the copyright, the music, the artist name, etc. forever. 2. The "publisher" is assuming unlimited rights and powers, while the artist is limited to working only with LS for 2 years. 3. Even if the artist leaves, they can and will get money from the artist, if the artist is making any money from his? songs. They seem to be claiming to extend ownership of the copyright forever, and the artist grants them this right. 4. The artist appears to have to join BMI, ASCAP or whatever if they want to get paid. That would be another contract in itself. 5. They list certain circumstances which may limit or even stop payments of royalties. 6. If LS gets an advance payment, guarantee payments or minimun royalty payments from whoever, the artist does not get any money at all. 7. Oh crap, I have to leave. St. Cheez ------------------ IP: Logged |
| #39
BaptistDeathRay Guru Posts: 337 |
posted 05-20-2000 11:11 AM
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St. Cheez, I know I'm not a lawyer, but both contracts state explicitly that the artist retains his copyrights. For the catalogue site, I remember the document slightly differently... there was never a mention that selling CDs would be on a different site. What it did say was, if I remember correctly, that there would be two other web sites designed specficially for people who wanted to use music for publishing purposes (in soundtracks, etc.) and that those sites would essentially be catalogues of the music on this site that was cleared for publishing. I guess I'll have to get that PDF again and see for sure, but that's what I remember. ------------------ IP: Logged |
| #40
CBH3 Records Guru Posts: 487 |
posted 05-20-2000 11:40 AM
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Cheez, I've found it One of the early threads from March that shows that publishing was a topic of discussion back on March 8. It even has some basic statements from Sean. http://ubb.listensmart.com/ubb/Forum12/HTML/000126.html That 50 page document that you refer to, cheez, is about the basic site here at LS. It covers the way this site works in general. It is possible to sign up and not join the publishing/revenue sharing program. Many of us already signed up and realize that this site is a basic OMD giving away free music. CBH3 p.s. HZ has it right on the "other sites". I remember reading about SyncSmart and the A&R site. [This message has been edited by CBH3 Records (edited 05-20-2000).] IP: Logged |
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