Music Law | Prof. Dr. Hanno Fierdag
"Be careful granting exclusive copyrights"
At the beginning of his lecture, the professor and specialized attorney in the field of entertainment law jokes around: “Music law is rather a dry topic.” However his lecture is anything but dry. He is well-acquainted with the music industry, holding lectures since 2006 at Technische Universität Dresden and at the well-known Popakademie Baden-Württemberg.
In the first part of the lecture, Fierdag makes a distinction between American intellectual property and German copyright, which provides broader moral rights (Urheberpersönlichkeitsrechte). Therefore, German copyright cannot be sold. Fierdag explains: “the moral rights protect the ideal interests of the author including the right of first publication (§ 12 German Copyright Act (Urheberrechtsgesetz=UrhG), the right of the recognition of authorship (§ 13 UrhG), and the protection from the distortion of the work (§ 14 UrhG).” He gives an example to make the protection against distortion more tangible: “If your work is linked in a reputation context such as the famous German singer Helene Fischer who’s song was played at a radical right wing convention, she has the chance to sue the organiser and prohibit the use of her songs if the use is capable of prejudicing her legitimate intellectual or personal interests in the work.”
He sets out the legal basis and distinguishes between the copyright owned by the lyricists and composers (§ 1 UrhG), and neighbouring rights owned by the performing artists (§ 73 UrhG). Fierdag continues, “when a label joins, the same applies for producers of recordings. They have their own exclusive rights (§ 85 UrhG), because they organised the production of a recording and funded the music project and therefore, they should have the protection of the investment”. If the musicians are the performing artists as well as the producers of a record, they own the neighbouring rights as well as the copyright. Similar to Kretzschmar, Fierdag poses the question of how to monetise a song. “The exploitation rights are essential to earning money with music. So this applies to both performing artists and composers. They need exclusive rights to earn money from it. Such exclusive rights are for example the right of reproduction (§ 16 UrhG), because only the composer is entitled to reproduce his work. Just like performing artists, who have the exclusive right to decide whether their performance will be recorded. Because of this exclusive right only they can earn money with it. If they do not have this right, anyone could record and exploit it.” Further exploitation rights are: the right to distribute (§ 17 UrhG), to exhibit (§ 18 UrhG), to perform (§ 19 UrhG), the right to make it available to the public (§ 19a UrhG), the right to broadcast, (§ 20 UrhG), and the right to adapt (§ 23 UrhG).
As a successful composer, it is essential to register with GEMA (society for musical performing and mechanical reproduction rights), which is the German collecting society for composers and lyricists and which is a pendant compared to the British PRS and the Ghanaian Cosca. As a performing artist and producer of sound recordings, it is essential to register with GVL (society for the utilization of neighbouring rights), so they can collect the royalties. “GVL pays the fees they collect on a fiduciary basis e.g. from radio and TV stations and for the public performance (e.g. in restaurants or cafés) to their members each year in the form of a remuneration.” (https://www.gvl.de/en/gvl/about)
The Ghanaian producer and artist manager Emmanuel Nii Quaye Aryee is excited about what he heard, saying: “Understanding how other countries like Germany, Spain and the UK work with their collecting societies, their publishing system and their copyright issues was a mind opener for me. For example, how long you own something, or the whole hierarchy, how much goes into what, how you should approach different partners. It’s all about basic knowledge.”
Labels make contracts and agreements with composers and performing artists. The idea behind these contracts is that artists grant those rights to their label and publisher. Fierdag provides an example: “Let’s say the record company sells a CD for 10 € to a retailer. This is the so-called published price per dealer (ppd), and the ppd is the calculation basis for the distribution. This means that the artist usually gets between 8 % and 15% of the ppd. If the ppd is 10 €, the artist receives 15%, i.e. 1,50 € per record. It does not usually remain within this proportion, because most contracts take quite a lot of cuts from the artist. If the record is for example TV-advertised or the record is sold abroad, the payment is reduced. So the basic license is not what comes out in the end.”
Both lecturers Karolin Kretzschmar and Hanno Fierdag stress that artists should be careful granting their exclusive copyrights and neighbouring rights to labels and engaging with labels, promoters, managers and bookers. Read contracts closely and know your rights!