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thanks, Terry...she has a great voice...do you know Abbey?

An up and coming artist, Abbey Gregory, is choosing songs for her new project. She is looking for up tempo songs at the moment. You can find her on MySpace, CD Baby. Please send demo in mp3 format and a lyric sheet to:

abbeysmusic@gmail.com

Thanks!
-terry

Dotty, Dotty, Dotty!

It is too bad that church staff (pastors included) try to pull these kinds of things.  I have dealt with similar situations with worship pastors who are told that everything they have ever created must now be owned by the church, if they write country tunes the church owns them, etc.

First of all, the church does not own ANYTHING that someone who is not on staff creates.  That is because there are basically 4 ways for a copyright to be owned - (1) personally if the individual creating the work (defined as the “author” in the Copyright Act) has no existing WRITTEN agreement that states that what they create will be assigned to a third party; (2) by a publisher or other third party if the work is already created and then "assigned" to a third party via a WRITTEN agreement (such as to a music or book publisher if the music or book already exists); (3) as a "work made for hire" when the work is created by an employee WITHIN THE SCOPE OF THEIR EMPLOYMENT (in other words if a pastor is hired to preach then what they write out as a sermon, or recorded for that matter, the church owns it UNLESS there is a WRITTEN agreement that the pastor's creations will not be a work made for hire); and, (4) someone signs a WRITTEN agreement BEFORE ANY work begins that the creation will be a work made for hire.

The difference between the first 2 descriptions and the second 2 descriptions is extremely important for a number of reasons.  In the first two situations the work is protected by copyright for the life of the last surviving "author" (songwriter or whatever) plus 70 years.

In the second 2 situations, the life of the copyright is either 95 years or 120 years depending on whether the work is published or not.  That is because with a "work made for hire" the "author" is the party that "ordered" the work to be created - not the person/people who created the work.

Just because you create something that is performed in church the church does not own it any more than they own Michael W. Smith's music because he performs it there.

If, however, you are on staff at the church and part of your job description was/is to write skits, the church probably does own them as “works made for hire” as that is within your scope of employment.  Neither does it own your songs if they are included on the compilation.  In fact, you could sue the church for infringement (not that you would want to - if you plan on continuing to attend there) once they publish the compilation IF (and only if) you register the song(s) with the copyright office (preferably BEFORE they record it – and you should anyway). That is because the copyright was created when you first put it in a “fixed form” (recorded it on a boom box, wrote out notation, videotaped yourself singing it, etc., and it was original to you.  (When you send in an application to the Copyright Office you are “registering” an existing copyright – NOT “copyrighting” the work.)  If they record your song then they really should secure “mechanical” licenses for all songs on the compilation they don’t own if they will only be in CD format, and “DPD” licenses if they plan on allowing people to download the recordings.  And, you are due royalties unless you agree – IN WRITING (which are still licenses) – that they can use the song on a gratis basis.

Finally, unless your painter friend was on staff and their employment duties included creating fine paintings or signed a document before the service started that stated that whatever they created during that service was a “work made for hire,” the church does NOT own it.  However, your friend could assign the painting to the church (with a WRITTEN agreement) and, provided it was drafted correctly, the church would own it.  (In my opinion they should NOT assign it and should feel no obligation to do so.)

One other distinction between works made for hire and other copyright-protectable works: provided an author (or authors) of an individual work or series of works (as in a song catalog that is held by a publisher) takes the right steps the current Copyright Act provides that the author(s) can require that that/those works be reverted back to the author.  On the other hand, remember that with works made for hire the employer or the party that ordered the work is deemed the author, so there is no one to revert the works back to.

A few final tips:  never, ever, ever, EVER sign a publishing agreement that states that your songs (that you are either (1) assigning; or (2) create during a term) will be deemed “works made for hire.”  The only time that is “normal” (accepted, but not necessarily “fair”) is if the song is being created for a commercial (radio, TV, etc.).  It is considered “normal” in that industry – but again, only if the work is created AFTER a WRITTEN agreement is signed or created within the scope of employment.

“Employment” in all these contexts means just that: you are employed with a regular paycheck, withholding is taken out, etc.  It does NOT mean contract labor such as when you are hired to do one specific thing, such as write a song, take a picture, make a painting, etc.  On that note I hope you realized that if you hire someone to create graphics, take photographs, or create text for a recording (or produce recordings for that matter), you ABSOLUTELY should get that person to sign a “work made for hire” agreement BEFORE they begin any work.  (And that agreement should be drafted by an experienced attorney.)

Finally, copyrights are not modified, licensed, assigned, or changed from what the Copyright Act states without a WRITTEN agreement – verbal agreements are NOT binding.

Obviously, this is a complicated issue and I have only scratched the surface.

Greg Seneff

As a BMI writer (as opposed to ASCAP or SESAC) you are in a unique position.  You should register each of your songs as a "200%" writer.  That is not a typo: 200%.  That represents 100% of the writer's share of public performance income and 100% of the publisher's share of public performance income.

If you co-write with one other person, you would be a "100%" writer when registering that song - representing 50% of the writer's share of public performance income and 50% of the publisher's share of public performance income.  And so on.

If, however, you begin signing other writers you would be well advised to join BMI as a publisher - and probably form either a corporation or an LLC.  This would primarily be for avoiding liability.  Specifically, if someone you sign infringes someone else's song you do not want to be personally liable.  Without a legal entity (and preferably some business insurance for just such a situation) you would be liable down to your socks.

As for the taxes, I am not qualified to really comment so I am only a layman in that regard.  However, I understand it is just "Schedule C" income.  Check with a CPA - one who deals with clients in the music industry would be best.

Greg Seneff

I obviously don't know who your publisher is.  However, at the risk of offending someone I know, I will tell you that it IS a big deal and the publisher should have set up a BMI publishing affiliation to sign your song(s).  I would go to BMI and ASCAP (you can call if you are not near one of their offices) and explain the situation.

What your publisher has essentially done is prevented you from collecting any public performance income.  Did the contract with the publisher state that the publishing designee you were signing with was "ASCAP?"  If so, then that would probably be deemed (by a judge) as your failure (sorry).  That is because you are deemed to know everything about a contract you sign if you are over 18 (in Tennessee at least).  (I know, I'm biased, but this is precisely why hiring an attorney who is experienced in these issues is important.)  It will not matter (to a judge) what the publisher told you.  The contract supersedes any conversation you had with the publisher (and the contract, if drafted by an experienced attorney, probably says that - in legalese).

Your publisher CAN fix this situation, but it will take a work around and some effort on their part.  Let me know if you want to discuss this further.

Greg Seneff

Thanks everybody.  'Preciate it!

Steve,

I would register the work and if you do so with either the online application or fill it out online and print it you can register both the song and the recording (they are SEPARATE copyright-protectable works) if the ownership of both is identical (same owners with the same splits).  If you want to save some money you can register a number of works in the same format at the same time (again, with identical ownership for all of them registered on the same application). 

Since the recording is going to be distributed more widely than a demo would normally be (in other words, to more than just reputable publishers and A&R folks) I would suggest you register it.  If you don't you register the works before infringement you will not be able to bring any kind of action against anyone who infringes the song or the recordings.  If you register after infringement you are only eligible for "actual profits" and perhaps injunctive relief.  However, if you register before infringement you are eligible for statutory damages ($750 to $150,000 per infringement for EACH the song and the recording), attorney fees and court costs.

Even if a recording is only a demo, if you distribute it to the public (give it away to friends, sell a few at performances) I believe you should register at least the song if the recording is not commercial.  However, you cannot protect the recording if you don’t register it – only the copyright in the song.

So, I suggest that $35 is pretty cheap insurance to make sure you have all that the law allows for something you created.

Greg Seneff

Hi, Dotty:

I'm interested in what folks have to say on this.
My initial reaction is that something's just doesn't seem right.

Greg Seneff gives wonderfully helpful and generous legal advice to us WAJonians.
This discussion board is not as active as it once was, so he may not be checking in
as frequently.

You can go to Greg's profile (his e-mail address is listed there) and send him a message.
I'd like to hear what he says.

Blessings.

Hello WAJonians,

My name is Dotty, and I attended the WAJ Nashville conference a couple of years ago.  After attending, I realized that my primary desire was to focus more on drama ministry, and songwriting was put on the backburner for the time being.  However, I come to you today because I believe you all will have the greatest depth and breadth of knowledge on this subject, and I truly need your help.

For Easter Sunday, a close friend of mine was asked to do a performance painting during the service.  She painted her canvas from start to finish during a service, while the worship minister read a creation/fall/redemption story.  Beforehand, the pastor told her that she could keep the paintings, and that they would reimburse her for the supplies. Well, after the service, a few dozen people approached her (and the leadership) about *buying* the paintings from her.  She was thrilled, validated, and felt like a "real artist" for the first time (she's a gifted artist and art therapist). 

When the church leadership found out, they reneged on their previous agreement, saying that the church "owned the rights" to any works "produced during a service or for a service," and that they had to do that for income tax purposes!  It was because they were a non-profit, tax-exempt organization, and couldn't have their members doing any creative works for the service, for personal profit.

I really need an icon for "shocked and sick on my stomach." 

I've written and performed 6 skits for the services in the last year.  The worship band just released a CD of original music.  I just met with the worship leader on Thursday for a songwriting session.  I'm not on the church's payroll, I've never charged the church for anything, or even had any expenses reimbursed, but now they're saying that they OWN the rights to anything we make, that's performed in the church?  Is this even remotely legal or legitimate?  Is there no way that we could give them unlimited *license* to our work, while still retaining our own copyright? 

Sorry, I'm trying not to be emotional.  I received a vague reply from the senior pastor, and he told me to meet with another pastor on the issue (and I just asked for that meeting).  I would love to hear your input on the issue. 

Thanks so much,
Dotty

PS:By the way, I understand that hillsong has the same policy.  However, HIllsong is also a record company, music ministry, training college, etc.  I would expect that any works of students or band members stay with Hillsong, just like I would expect that Dug and Carl Fredrickson stay with Pixar if Bob Peterson or Pete Docter leaves. 

Hello Friends,
I've been reading different spots here on the board and around the web that indicate maybe I should become a BMI publisher (I'm a BMI writer).  Most of the cuts I've had have been by my own efforts (even when publishing has been with someone else) and better than half the time I have been the one footing the bill for the demo.  Now, as noted in my earlier question, one of the publishers I have affiliated with most likely should never even have published my music...they are ASCAP.  :(

While I invite comments regarding self-publishing, my bigger question involves what kind of nightmare I may be in come tax time.  Each time I fill out my taxes and list that I've gotten some income as a songwriter, I get into a mess with being self-employed, etc.  I don't really recall how I've gotten out of the mess, but I've always claimed my royalties and certainly wish to continue to do so.  Why does the IRS make it so difficult to do the right thing???  At any rate, what kind of mess am I going to get into if I now have a "business?"  That scares me to pieces!  I don't want to get into employment insurances, etc.  I'm a schoolteacher for cryin' out loud!  Please advise.

Thanks!
Susan Jones
Moundsville, WV

Hello,

I have a song with a songbook publisher who listed everything in their book as "ASCAP."  Upon contact, they do not have a BMI or SESAC publishing company set up. 

I am a BMI writer.  I asked early on about that being a problem and was told "no big deal."  Now I've got a group that wishes to record the song and when I tried to enter the info into BMI's works registration it will not accept it due to the ASCAP publisher.  The form wants to know what percentage of the writer's royalties are to be paid to ASCAP.

What can be done, if anything?
Thanks!
Susan Jones
Moundsville, WV