English · Interviews

Interview with Marc Friedman – Entertainment Lawyer South Africa

Antionette Cronje, Music2Deal representative (South Africa), asked Marc Friedman some questions regarding issues, such as copyright, publishing, licencing, needletime and how these issues are addressed in South Africa.

 If you want more detail on any of the questions below, you can contact Marc on Music2Deal at the following link: http://bit.ly/RWkh3e

 What advice can you give songwriters when they’re approach with a publishing deal for a song? What is the most critical point to look out for in a publishing contract?

 The most important aspects are the TERM OF THE DEAL and the SHARE OF REVENUE.  Sometimes publishers will present a deal that expects the composer to assign the composition for the life of copyright.  This is not the industry standard anymore; anyone can usually negotiate that the terms if for 3 to 5 years with a retention period in certain instances.  Also the revenue shares needn’t necessarily be 50/50, depending on the status of the composer and the level of effort on the part of the publisher, i.e. where the publisher is more active, they will expect a bigger share of the revenue.

What are the possible pitfalls when an artist has been approach for synch licensing deal?

Does the licensee want the piece of music in an exclusive or non-exclusive basis?  If exclusive, one should ask for a very large fee, one should never have to assign the work and should look out for words such as “BUY YOU OUT”, which suggest an assignment.  One should also ask that once can still earn public performance royalties and that the Licensee will fill out cue sheets to enable this.

Why do some publishers, who have a music catalogue or library, want to change the name of the songs, when an artist signs a publishing deal with them?

You would have to check with the publisher on this point, but it could be to try and distinguish them from similar hits with a similar or identical title.

How does changing the name of the song by the publisher of a music library impact the songwriter?

There shouldn’t be an effect of this, provided any collection society is appraised of this change to avoid confusion.

To qualify for live performance royalties, a band has to complete a live performance royalty form and submit it to SAMRO. If 3 of the band members are new to the band and are not registered as songwriters of the songs performed live, are they entitled to live performance royalties?

SAMRO (the South African Music Right Organisation) would have to clarify this, but I suspect they are entitled to collect these royalties, but the fact that they are not registered is an administrative issue for SAMRO and that these royalties may be able to be held by SAMRO until they are registered.

If an artist wants to record a cover of a chart topping hit, does he/she need to get permission from the original artist?

No.  The South African Copyright Act makes provision for a compulsory mechanical license in respect of any song previously recorded in South Africa.  This is provided that it is an identical cover.  If one changes any word, music or structure, one needs permission.

In short, what is needle time and when does an artist qualify for needle time?

Needletime is the public performance royalty, which is paid when a recording is played in public, i.e. on the radio, at a venue etc.  Needletime has always been in our Copyright Act, but has not been practiced for a number of years.  About a decade ago, it was agreed that this would be re-introduced in South Africa, but the broadcasters and music industry are still haggling over what rates should be paid by the broadcasters for the use, so it is not being paid yet.  The general sentiment is that the needletime on any recording should be shared equally between the copyright owner (who paid for it) and performers who participated in the recording.

Who owns the mechanical rights to a song?

Copyright in South Africa vests in the party who wrote it.  The mechanical right (i.e. the right to allow the song to be recorded or reproduced is just one of the rights that copyright reserves for the owner).  Copyright sits with the composer, unless it is assigned to another party in writing.

If band XYZ wants to record a song for their album and the song was offered to XYZ for re-recording by the original songwriter (who is not a member of the band), does the band have to pay any set fee for re-recording the song?

The agreed mechanical royalty rate is 6.76 % of the PPD price of a CD, although models are developing for the digital industry, where rates are often calculated on the retain price (rather than PPD, which is the wholesale price)

When entering an agreement with a management company, what percentage of the band’s income can the band expect to part with?

This would depend on the nature of the relationship (what the manager does), the status of the manager and the band, but I would say it could be in a range from 15 – 25 % with a further debate as to whether this is calculated on gross (the amount payable to the band) or net (once expenses have been deducted).

Interviewed by Antionette Cronje


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