Re: registering a composition

[Valentin Villenave]

On 5/23/20, Francesco Petrogalli <address@hidden> wrote:
> Hi Valentin - I am all new to these things and every time I look into
> this I get more confused.

No problem. (I’m adding back the list, just in case others may correct
me if I say something wrong and/or stupid.)

> Say I give a CC BY license to the work, and I publish it on github.
> Will I still be able to collect the royalties if someone plays it?

No. If that’s what you’re looking for, I think you should indeed
register with a Rights Management Organization (RMO): Ascap, BMI, or
any other one.  (Like I said, Ascap *used* to be one of the least
worst options.  Not sure nowadays; the race to the bottom rages on.)

Two reasons for that:
- first of all, if someone plays it then who’s going to tell you that
it’s been played somewhere? Who’s going to collect the money? That’s
what a RMO is for.
- second, if you choose a license such as CC-by, you’re giving many
authorizations to everyone: basically, all CC-by does is force them to
credit you as the author (or as a co-author, if they’ve modified your
original song to create a new work). So, you can’t _both_ authorize
people to copy, perform, and create modified versions of your work…
and forbid them from doing so unless they give you money.

A bit less open that CC-by, are “copyleft” licenses: CC by-sa, or the
Free Art License (http://artlibre.org/licence/lal/en/) which I
personally use.  They give the same permissions than CC-by, _but_ if
anyone creates copies or modified versions of your work, then they
have to share it under the same license as the one you’ve chosen
initially. Since traditional publishers and big media companies are
very reluctant to take any risk, that ensures that no “big” commercial
player is going to take advantage of your work.

Then, still a bit less open, are so-called “non-commercial” licenses;
CC-by-nc for example.  Their purpose is to give you even further
protection: you’re authorizing people to copy, perform and make
modified versions of your work, but ONLY in a non-commercial context.
The problem is that no one, so far, has any good legal (and
enforceable) definition of what “commercial” means; if a school
performs your song to gather money for a school trip, does that count?
 If someone plays it in the street, with a hat placed before them on
the sidewalk to encourage donations, does that count? etc.

Then, even less open, you have no-derivatives licenses: CC-by-nd.
This allows people to download and copy your work, but ONLY as you
published it in the first place: modifying it is not authorized by the
license.  Which is a problem when it comes to art; a music score, for
example, is bound to be reinvented and interpreted (which is to say,
“modified”) every time someone plays it.  And what about remix?  And
“theme and variations”, as composers used to do?  And musical quotes
(for example in jazz improvisations)?  There isn’t a single composer
in the 18th and 19th century who wouldn’t have ended up in jail (or in
debt) if the law had been what it is today: no more Bach turning
Vivaldi’s violin concertos into harpsichord pieces, no more Telemann,
well, at all; no more Ravel orchestrating Moussorgsky, and so on.

Note that I said “not authorized by the license”.  No matter the
license you choose, anyone can still get in touch with you, and
negotiate a “license exception”: some special, limited authorization
outside the license’s terms -- which you can grant if that person’s
offering you money, or if you decide to help them or whatever.

… BUT that last sentence only applies if you’re managing your rights
on your own. If you sign up with a RMO, then all bets are off; _they_
will decide for you which authorizations to give, how much money to
ask for, whom to sue in your name,… and you will have NO control
whatsoever over it.  (Most of the time actually, you won’t even know
what’s happening with your work until months later or even a couple
years after the fact.)

> I would feel too bad if the CC license on the PDF wouldn't allow
> me to record this with a band and register the recording (not the PDF
> itself) with ASCAP.

Unfortunately, that won’t work: imagine someone else, with another
band (or a guitar, or whatever) downloads your score and records your
song.  If _your_ recording has been registered with Ascap, that makes
this _other_ recording a counterfeit in their eyes, and they won’t
hesitate to sue them.  (Unless it’s a more famous and powerful band
already registered with another RMO or even with Ascap itself, in
which case you’d be surprised how fast they’ll let it slide and give
you mere pennies for your trouble).

Actually, it goes even further: since you’re not allowed to authorize
exceptions by yourself, YOU cannot even share copies of your own work
as freely as you’d want. You won’t be able, for example, to upload a
video of your song on YouTube without half a dozen of copyright robots
immediately complaining about “infringement”, demanding to slap ads on
it, or even to mute your video (yay, a music video without sound!
Nice.).  To be honest, that’s unlikely to happen unless your recording
gets “protected” by a record label in addition to Ascap; but if it
does (speaking from personal, if indirect, experience), let me tell
you that sucks.

In that sense, since publishing under a Free License allows your work
to propagate much more widely, it *may* actually give you *more*
safety than the usual publishing model: the more your work is visible
and available online, the more likely you are to hear if someone’s
been using it without your consent in a TV ad or whatever.  (Whereas a
RMO, again, might not care unless you’re famous or worth a lot of
money -- *even* if you’re registered with them.)

BUT, as I said, if your handling your own rights individually, then if
it’s royalties you want, you’ll need to watch out constantly for
unauthorized performances, call anyone that play your song and
repeatedly try to collect your money.  That’s more or less a full-time
job, and I don’t think anyone can really sustain that without ending
up registering to an RMO.

> Are you totally handling your royalties on a per case basis? How do
> you do that? You print your email address on the music and ask people
> to contact you if they  want to play it / record it, and then you set
> up a contract?

Well, I’ve tried several different models.

- As a composer, the simplest thing to do is rely on commissions
rather than on post-facto rights (residuals, royalties, etc.): I ask
to get paid (comfortably) for the amount of time I’ve spent writing
the piece, but I’m not asking for anything after I’ve put the final
\bar "|."
It’s somewhat of a bargain: if the piece is hugely successful, that
won’t make me rich for the rest of my life.  If it’s a disaster, then
I don’t care since I’ve already been paid anyway :-)

- Free licenses sometimes may allow you to engage differently with
your audience (and most importantly, your performers).  Contrary to
the usual capitalist dog-eat-dog paradigm where all of us are trying
to survive and make a profit whenever we can (even if/when that means
forgetting any moral standard), when you put your work out there and
tell people: “go ahead and enjoy; my goal is not to sell you something
but to do my best and hope you like it”, well, many people (not all,
but quite a few) look at you quite differently.  As an example, I
spent a few years performing in a musical play where I had written
most of the songs; every night after the play, I’d go out and address
the audience: “all the songs you’ve been hearing tonight are available
under a free license; you may download them at <URL>, but there are
also some paper copies available for you at the exit; you can have
them for any price you’ll choose.”
After a few dozen of performances, I noticed that this was actually a
success: people paid on average nearly €12 per copy (50 pages of
LilyPonded black-and-white contemporary music)! Not to mention that
they had *already* paid for their ticket to the performance…

- If you’ve looked around in the past dozen years, there’s a huge
trend towards alternative funding models these days: from Kickstarter
yesteryear to Patreon today (hey, remember Flattr?); all these new
intermediaries are not exempt from criticism (far from it), but you’ll
notice that none of them rely exclusively on the sacrosanct
“all-rights-reserved” paradigm, the way RMOs do.

- I mentioned earlier that free licenses are popular with priests and
religious people; as an atheist and an anarchist, that would be the
last sort of circles I’d be expecting to find myself comfortable
around, and yet I’ve given quite a few lectures and contributions in
such venues.  I think it’s somehow relaxing, at times, to choose to
just trust your fellow human beings (neighbors or remote people)
rather than expecting everyone to be trying to take advantage of you.
That doesn’t mean you should be naive; some people WILL scam you if
given the chance; but the energy you spend making sure that doesn’t
happen is often far superior to whatever hypothetical loss you might
experience.

If I had any advice to give you, it would be that: that score you’ve
been building together with your son seems like a very sweet and happy
project; I sincerely hope it’s going to be performed as pleasantly as
you can wish for, and that people will be happy and moved when they
hear it.

Now, the copyright industry’s propaganda would have you believe that
_none_ of that can or should happen without them getting a piece of
the cake; that’s not true.  They would want you to live in fear that
thousands of greedy musicians around the world are waiting in the
shadows, and will make lots and lots of money off of your work unless
they’re here to “defend” your interests; that’s not true either.  They
would want us to believe that giving anything away for free is a sign
of weakness and will only encourage others to act dishonestly; that is
the opposite of the truth.

I’m not saying the world is a nice place (it isn’t); you should, at
the very least, secure *your* copyright by having a solid proof of
anteriority, as we discussed.  What I’m saying is that you shouldn’t
overestimate the possible threat to your work if you were to publish
it freely, nor the amount and quality of “protection” you’ll get from
any RMO out there.

Good luck, whatever you choose! Not to put any additional pressure on
you, but if your score is engraved with LilyPond and you end up
publishing it freely, when that band performs it I’ll ask the -devel
team how they’d feel about mentioning it on
http://lilypond.org/productions.html :-)

Congratulations to your son; here’s hoping someday he’ll be able to
write down his music without requiring your help!

Cheers,
-- V.