School Music Ensembles Join the Digital Music Revolution with TuneCore
By James Frankel
Copyright law is something that effects music educators every day. Over the past five years I have given a presentation on copyright law entitled To Burn Or Not To Burn: It’s More Than An Ethical Question and it is almost always met with attendees being shocked to find out that they’ve been breaking copyright law quite frequently. Most often it is the knowledge that it is illegal to make recordings of school performing ensembles that are then sold as a fundraiser without paying royalties that comes as a surprise. What many fail to realize is that all music compositions come with two copyrights – one that protects the publication (the notes on the page) and one that protects the recording.
When you buy an arrangement for your ensemble to perform, you are only technically purchasing the right to perform the work, and not the right to record it. The Fair Use Provision of US Copyright Law affords educators the right to make a recording of the performance (without permission) for archival use only. That recording can be played for students to evaluate, but it cannot be reproduced (without written permission). There are many music educators across New Jersey and the country that routinely make recordings of their ensembles using school-owned recording equipment who then produce professional looking CD’s – complete with cover art, printed label and a jewel case – to sell as a fundraiser for their department. The only way to legally do this however is to pay a mechanical licensing fee to each publisher (you can do this through the Harry Fox Agency at www.harryfox.com) through royalties paid on each CD produced. The current royalty rates are 9.1 cents per composition or 1.75 cents per minute - whichever is greater. This applies to all CD sales – even if you are only selling a handful. You must pay the royalties to have a legally produced CD. If you record your orchestra, band, and chorus at a concert and the recording features a total of 16 works, you will owe at least $1.45 in royalties per CD – a very small price to pay really. While some might view these royalties as trivial or even cumbersome, imagine if you were the composer or publisher. You’d want them. If publishers were to sell music that included the right to record the work you can rest assured that the arrangements would be far more expensive than they currently are.
For many, copyright law might discourage them from producing CDs of their ensembles altogether. It isn’t easy jumping through all of the hoops to make a legal recording in house. There are quite a few recording companies out there that fill this need by charging schools a fee to record the concert, and by taking a percentage of each sale to generate income. It is the responsibility of these recording companies to get the rights to record the concerts, and they profit from doing so. Until recently, this option was the only realistic avenue for music educators to pursue.
There is a new alternative available to educators that has tremendous potential, and I am thrilled to introduce it to you. I haven’t been this excited by a service for music educators in a long while. Meet TuneCore.
What is TuneCore?
Last March one of my 7th graders asked me if I had heard of a new site called TuneCore. I find that my students are often way ahead of me on technology, and this was one of those times. TuneCore is a website that allows users to upload their music (either original works or cover songs) to the site which then charges a nominal annual fee to make that music available on the iTunes Music Store. The annual fee ($19.98) covers the cost of TuneCore getting your music on the iTunes Music Store. There is also a one-time uploading fee of 99 cents per song and a 99 cent delivery charge per album for each store you sell your album on. That means if you upload a recording with 16 tracks, you would owe $16.83, bringing the total cost to $36.81. (If you want your album to be sold on all five iTunes stores worldwide as well as Napster, you would owe an additional $4.96).
Once it is on the iTunes Music Store, you get to keep 70 cents per downloaded song up to a maximum of $7.00 per album. That’s right. You pay $36.81 one time and then get $7.00 per downloaded album from iTunes.
Mechanical Licensing
In addition to the fees paid to the iTunes Music Store and TuneCore, music educators must also pay the mechanical licensing fees to the owner of the copyright for each song. TuneCore does not handle the mechanical licensing for the recordings you make - that is up to you. Not too long ago obtaining this permission was an arduous task. Now, with a few clicks of a mouse you can obtain those rights quite easily. By visiting a new section of the Harry Fox Agency website called SongFile (www.songfile.com) you can create a free account and search for the licensing for each of the tracks on your CD. You simply enter the name of the composition and select the appropriate composer. Next you select the format of your recording – a physical CD or a download (or both). You then click “Add To Cart”. Once you have found all of the licenses you need, it’s time to checkout. There is a minimum license of 150 copies for download and 250 for CDs on the Harry Fox site. This does not mean that if you make fewer than 150/250 copies you don’t need permission – it means that you must purchase a 150 or 250 license from the Harry Fox Agency or get permission from each individual publisher, which could take quite a while to obtain. Harry Fox represents almost every ASCAP composer, and a quick search for every composition I played on my last Spring Concert found the licenses in seconds.
To give you an example of what a typical royalty would be, a recording of a typical band composition that is 4 minutes long would cost 9 cents per download or CD. The minimum license for 150 downloads or 250 CDs would cost $13.65 and $22.75 respectively. In addition to this licensing fee, Harry Fox charges a fee approximately $13 - $15 per composition. This means that it will cost you @ $26.65 for a download license and @ $35.75 for a CD license for each track. An album with 12 tracks would then cost $319.00 for the downloadable version and $429.00 for the CD version. I know that this is very number heavy, but I want to make sure that music educators know that these fees aren’t optional if you want to make legal recordings of your ensembles. While you can seek out individual permissions if you plan on selling less than 150/250 copies of your performance and avoid paying the processing fees charged by Harry Fox, mechanical licensing fees are mandatory. Not paying them is copyright infringement, and illegal – even if you only sell 10 copies.
My suggestion to all music teachers who are considering selling CDs of their ensemble performances is to do a cost analysis – will you make enough money on the sale of the CDs to cover the mechanical licensing fees? Once those fees are paid, all of the profit goes to you.
My TuneCore Experience
Back in April I mentioned the TuneCore website on my daily Music Technology Blog (http://jamesfrankel.musiced.net) and immediately received a comment from Mr. Peter Wells, the Senior Vice President of Operations and Customer Advocate for TuneCore, Inc. He invited me to submit a recording of a school ensemble to the site. I knew exactly which one would work best. This past year I began a “School of Rock” style program at my school and the 6 student bands involved performed at a Battle of the Bands. The concert also served as a benefit for the Mr. Holland’s Opus Foundation. The students played rock songs from a wide variety of artists – it was a great event. We recorded the concert using an M-Audio MicroTrack 24/96 recorder.
I visited the TuneCore website, created a free account, and uploaded each of the 14 tracks that we recorded that night. TuneCore charged me a fee of $19.98 to get all of the selections onto the iTunes Music Store. After I uploaded the songs, I visited the Harry Fox SongFile website and paid $361.00 in mechanical licensing fees for 150 downloads of each tune on the iTunes Music Store. For the investment of $379.98, I will keep 70 cents for every download from the iTunes Music Store.
It is important to note that you do not have to pay these royalties up front, and you don’t need to pay the Harry Fox processing fees either. The US Government created the compulsory licensing fees so that musicians would have the right to record any song, provided they pay the standard 9.1 cents per song rate. While the Harry Fox site provides a convenient way to get the licenses, you can legally collect the royalties on your own and submit them to the Harry Fox Agency later – you just have to remember to do so. Failure to comply with the compulsory license arrangement is illegal.
TuneCore keeps very accurate accounting records for the number of downloads of each song, and the exact amount of money our school is owed each quarter. TuneCore will issue my school music department a check whenever I choose to cash in my earnings. I am sure that I will cover the fees paid within the first week of the album’s launch on the iTunes Store, which is scheduled for September 10th 2007. The students involved are extremely excited to see their album available on the store, and so are their parents. The album is called “FAMS Battle of the Bands 2007”. It should be available when you read this article.
An Important Exception
While compulsory licensing covers performances of compositions by school ensembles, it does not apply to a recording that contains a recording. Simply stated, if you are using a accompaniment CD with your chorus, you do not have the right to record that performance and sell it using a compulsory license. For this particular situation you will need a “Master Use” license, and this is something completely different, and much harder to get. You will need written permission from the holder of those master recordings and set up a financial arrangement with that holder to include the performance on a CD.
Educational Applications
I interviewed Peter Wells (peter@tunecore.com) for this article, and asked him how music educators specifically could use TuneCore’s services. What follows is his reply:
“There are too many ways to count, but our primary service is perhaps the most salient: students produce music, and those recorded performances can be delivered through TuneCore into iTunes and other digital retailers for sale. A school or teacher could set up an account and manage all their students or encourage students to set up their own accounts. Either way, it's a critical introduction to the music business, a hands-on laboratory, and a way to generate considerable income. I can imagine several cases.
A HIGH SCHOOL music department director could set up an account at TuneCore in the name of their school/district. They can upload performances of their ensembles and direct them to whichever stores she or he wishes. Once live, merely publicize the link to the store page (we can show you how to generate a link right to your music on iTunes and other stores and place it on your home page, MySpace page, email, newsletter, even print) and let parents, friends, fans, rivals and even subsequent classes pay for and download the music.
AN INDIVIDUAL STUDENT OR CLASS can be encouraged to use TuneCore to place their own performances online and manage their own accounts directly (so long as they are over 18, otherwise they'll need to place the account in the name of a parent or guardian). The teaching possibilities are endless here: performances can be broken down by song, by class year and more, and many students in an orchestra can put up and manage individual works, letting them learn this business first-hand.
A COURSE OF STUDY in music is incomplete without addressing distribution, delivery, marketing and promotion. TuneCore is an ideal chance to show, transparently, how this business works, in a controlled environment that is at the same time live to the public and generating real revenue. Education is, in fact, part of our company mission and the driving force behind our enormous Frequently Asked Questions section (http://www.tunecore.com/index/faq) and our "Music Industry Survival Guide" (http://www.tunecore.com/index/news#story_9f). We offer these tools free to all, and imagine they're of tremendous importance to teachers.
Between this and all the other services TuneCore offers at considerable discount (printing of apparel, posters, buttons, stickers, etc., promotion and marketing opportunities, CD manufacture and more), the possibilities are unbounded.”
I hope that you find this information as exciting as I do. As an educator, I am thrilled by the possibilities that TuneCore affords. Fundraising through the iTunes Music Store gets school music ensembles in an extremely attractive and well-known medium. I predict that once sites like TuneCore get some more press, music teachers will flock to the site to join the digital music revolution. I know I have. Special thanks goes to Peter Wells (a former NJ resident) for taking the time to answer all of my questions in preparation for this article.
As always, I welcome your questions, comments and suggestions. Please feel free to email me at jim@musicfirst.com.