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September 30, 2011

If I Had Stew - The major label response

Well, I'm gobsmacked! No wonder the major labels are in so much trouble. A complete contrast in the response from two publishers in my pursuit of a simple clearance to record my parody.

First things first - credit where it's due. I had sent my request for a clearance to Kobalt Publishing, and got a response a week later saying that the person I had sent it to was going on maternity leave (congratulations and best wishes, Anna!) and that, subject to EMI's approval from Savan Kotecha, their client was happy to approve the parody. Wonderful service, great response - love Kobalt's motto: "Music Publishing for the 21st Century".

EMI's response, on the other hand, ranged from confusing to frustrating. The initial response to my completed form was:

What is your main goal for this use?

In your original enquiry you have noted that you intended to make a video for the song but have said "maybe" in your request form.

Is this principally for release as an mp3 single?

Fair question, so I responded to clarify:

To be honest, my main intention is to make the song for my own amusement.

If I play it to few people who agree with me that it's fun and good, then I'll think seriously about making a video as cheaply as possible and releasing it on YouTube. I have a few people who are interested in helping with that, though they wanna hear it first.

If it gets any traction on YouTube, then I'll think about releasing it as an MP3 and via iTunes, etc ... I just wanted to clear everything properly first.

That got me what seemed like a pretty straightforward response:

There are a few elements in which we would need to clear to give you approval to license this song. We will need to clear the lyric changes with the writers and the synchronisation rights with the copyright owners but primarily you will need to get approval to create a parody which can be difficult to get approval for.

Regardless, below is a quote for the synchronisation rights for the video if you were to receive approval for the parody, please note that it is strictly subject to approval:

    Subject to Approval:

    Work: If I Had You
    Writers: Kotecha/Martin/Schuster
    EMI Share: 33.34%
    Production: If I Had Stew (Song Parody)
Internet (Non-downloadable, in context streaming from Youtube only)
    Territory: World
    Term: 1 Year
    Duration/Use: Up to full length of song, featured
    Ballpark Fee: A$1000.00 (+ GST, based on 100% of publishing, MFN with co-publishers)

    Please let us know how you would like to proceed.

Putting aside the assumption of 100% of publishing, this seemed fair enough ... mainly because of the first bit, in which EMI plainly says that the hardest part is securing "approval to create a parody". That's what I'd expected and that's all I've asked for at this stage, and if the writer says no, the sync fee is irrelevant, right? Cool, full speed ahead with the waiting patiently for approval.

To let EMI know that Kobalt's writers were happy and thereby hopefully speed up the process, I sent EMI the approval email from Kobalt. This might have been a mistake, because EMI then responded with:

I just want to clarify with you that we are the licensing department of EMI Publishing, so we are quoting you on the synchronisation rights if you intend on using the work in a video clip.
If you want to request approval to record and release this song you will need to get in contact with our copyright department.
Please confirm what your intentions are for this usage.

By coincidence, I had just that day mentioned this project to my colleague, Tyler McLoughlan, who runs her own licensing company and works with EMI regularly. She gave me the view that I had been talking to the wrong people and that I needed to contact the copyright section directly. Well, OK. I wrote back:

Yes, the difference was recently brought to my attention by a colleague who works in Sync licensing.

I have no idea why I was referred to you first, since I can't sync the song to a video until I've recorded it, but we are where we are and I appreciate your help ...

Who should I contact in the copyright department? Can you refer me, please?

When I'm done recording, I'll get back in touch with you ...

This is where things got a bit ... well ... weird, frankly. In reply I got this question:

Will you be getting a mechanical license from AMCOS before putting this song on youtube or will you be putting it on youtube before you get a mechanical license?

Now, this takes me back to where I started. I went to the APRA/AMCOS website and read their Fact Sheet about doing parodies, which said that before I could ask for a license to release anything I had to secure written permission from the copyright holders to record the song. That's what started me on this quest ...

I got a bit confused by this, since I thought I'd made it pretty clear that all I wanted was permission from the writers and that I'd deal with the license fees after that was secured. In replying, I confused my types of copyright but still kept it pretty clear, I thought, that I just wanted to get things cleared properly over time:

That depends on whether I am allowed to use Sony's backing music or whether I have to completely re-record it myself ... still no word from Sony.

My instinct is to clear everything before I do anything. If I know what it's all gonna cost me I can do up budgets and set targets and so on. I just figured that securing permission was the first step ...

Perhaps picking up on my confusion, EMI confused me further

So does this mean that you do not intend to release the song with a mechanical license prior to putting a video on youtube?

If you intend on getting a mechanical license first you will need to get approval to record and release an adaption but if you do not intend on releasing the song first you will need a synchronisation license.

Please clarify what your intention are.

How can I synchronize the recording to the video without a mechanical license, I thought, and then, why would I bother releasing the video without an MP3 available thru iTunes or similar to capitalise on the opportunities that would (hopefully) arise? At this stage, all I want is permission from the copyright holders to record the parody, so I replied with:

Hmmm ... well ... I was thinking

  1. Get permission
  2. Make recording
  3. Figure out what to do with recording based on how people I play it to respond to it.
At 4) I would decide whether to release it either as a single or as a video. I guess there's no point making a video if the song's not available for purchase, so let's go for the former. Does simultaneous release make any difference?

The reality of this process is very different to the theory ... it's all very simple according to the copyright act ...

I now have a feeling that my biggest mistake here was not referring to the APRA Fact Sheet and then demanding to speak to the Copyright division but ... what would I know? I'm struggling to understand why this is such a complicated process for what seems to me to be a very simple request. Then I got this:

To get permission, you will need to clarify what you are intending to do. If you would like to proceed with obtaining permission for the internet use then please confirm you agree to the terms we quoted you on earlier (approval is valid for 4 weeks only and we do no guarantee that the copyright owners will approve).

If you intend on releasing a CD first, then confirm and I will pass your request on to our copyright department for processing.

Ok, well ... the first sentence makes sense from their perspective, They want to know what they're giving permission for ... but I'm still working on the basis that I need permission to do it before I can even think about licensing the results of doing it. My time frames for production of this sort of thing are measured in months, not weeks, so I replied with:

I have no intention of releasing a CD with this song on it in the foreseeable future. My next CD will be out before the end of the year and will be all original songs.

I would seriously consider releasing a digital single to iTunes, etc, via CDBaby or ReverbNation ... But I'm in no danger of making a hard-copy product unless I've got a dozen of these things to put on it. This is the only one of these I'm planning and it's not progressing very well.

I'm also in no danger of doing anything in the next 4 weeks. I have too much else on and this is a part-time project. I'm a single dad with a full-time job who gets about 10 hours a fortnight for stuff like this. Your conditions were fine, quite happy to agree, but a 4-week timeline is not gonna happen ...

What I need is the agreement of the song's owners to record the parody. When I know how it turns out I'll figure out what to do with it and pay all the respective licences for sync, mechanicals, etc.

I guess I need to be referred to the copyright department ... ??

EMI's response dropped my jaw and made me uncomfortably aware of the value of picking up the phone rather than pissing about sending emails that talk past people:

We can not give you permission to do anything with the song until you commit to a sync license (internet video) or a mechanical license (release) so please confirm if and when you are ready to proceed.

OK, so let me get this straight: EMI will not contact the writer and ask for permission for me to make a parody unless I fork out $1000 upfront and possibly also a mechanical license ... for a song I might not be given permission to make and that might turn out to be unreleasable ...

Alternatively, they won't ask for permission for me to record the parody until ... I've recorded it and know what I'm gonna do with it. No wonder people are just breaking the rules and doing what they want with recorded music!

Can anyone explain this to me? Have I missed something? My gut is telling me to ditch this, pick up the phone and speak to someone from the copyright section who will approach Savan Kotecha and ask him.

In fact, Fuck EMI. Does anyone know Savan Kotecha and can you ask him to contact me directly? I just wanna know what he thinks and I'm quite happy to give him credit and whatever proceeds might result from this parody should it ever see the light of day ...

Anyone? HELP!!
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Posted by Hughie at September 30, 2011 7:59 PM

What you have to understand with major labels and publishers is that getting approval on a parody (or any licence for that matter) is not simply a matter of the publisher picking up the phone and asking a writer if he/she is ok with the use. Most requests will have to go through local licensing teams, international licensing teams, international marketing teams, artist management, until they finally arrive at the writer. As such, any such request needs to be commercially viable for the publisher or label. These companies are not charities, and they need to have a minimum 'get-out-of-bed' fee to justify entering into the long winded licensing request process. I agree that it can be frustrating from a small time 'music creater' perspective, however unfortunately there is no way around it with intellectual property and global conglomerates. You must also remember that the person that you are dealing with at EMI Music Publishing is likely to be concurrently managing several massive advertising deals worth up to hundreds of thousands of dollars each, and in perspective your parody request doesn't seem as 'commercially vital' to the company. My apologies if this all sounds a little long winded however unfortunately it is the nature of music licensing!

Posted by: Liesl at November 9, 2011 8:41 AM

American here...

I just read this.

What the actual Hell..?

I'm a pretty smart guy, but really...

What the Hell?!?

Cheers and Good Hunting on whatever you end up doing.

Posted by: Jared Lazaro at July 31, 2012 8:31 AM

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