Introduction
There is a popular slang in the Ghanaian music fraternity regarding success, which is stated as follows: “Blowing no get formula.” It is a saying often used by emerging artists whenever they employ various unconventional means of promoting their music, all in furtherance of same going viral on the internet. At the heart of this saying, is that there is no magic formula for success in the music industry. This is true. Ghanaian artists like Amaarae, Black Sherif, and Gyakie, who were all at some point in the Ghanaian “underground” music scene, had no foreknowledge of the exact stage in their music careers when they were going to become global sensations.
The above notwithstanding, there is also another popular saying which goes like this: “Success is when preparation meets opportunity.” Albeit there may not be a magic formula for success in the music industry, it is important for artists to be adequately informed about the business (which invariably includes the legal) aspect of music. This is especially so for emerging artists. A corollary to the foregoing is consequently thus, becoming famous or going viral on the internet may generate a lot of attention for an artist, but not necessarily sustainable income. Sustainable income from the music business comes from a proper understanding of the business element of music; not the creative side. Therefore, the purpose of this article is to shed light on two very important facets of the music business – music distribution and music publishing – and the reason why knowing the distinction between these two is critical. But first let us talk some law, shall we?
The Legal Basis for the Distinction
Intellectual Property Law (“IP Law”) is that branch of law that governs the protection and enforcement of those intangible property rights relating to copyrights; patents; industrial designs; trademarks or service marks; protection against unfair competition; and all other rights resulting from intellectual activity. It is an area of law that encourages innovation and creativity in all fields of human endeavour, by granting protection to ideas which are expressed in some permanent form, and in a manner that yields some level of industrial or societal impact.
Copyright Law plays a key role in music regulation. It is that facet of IP Law that grants legal protection to authors or originators of musical works, sound-recordings, audio-visual works, literary works, artistic works, derivative work, computer programmes, and other copyrightable subject matter including songs, music videos, books, paintings, films, computer software, and sculpture. In Ghana, the overarching legal framework for copyright comprises the Copyright Act[1] as amended, its implementing regulations,[2] and relevant international conventions such as the Berne Convention,[3] the WIPO Copyright Treaty,[4] and the TRIPS Agreement.[5] Another important piece of legislation which provides specialized support for the administration and enforcement of IP Law in Ghana is the High Court Civil Procedure Rules.[6] The Copyright Office (a department under the Ministry of Justice) which was established by PNDCL 110,[7] is the body responsible for the registration and general administration of copyright in Ghana.
In Ghana, works created after 1st January 1978, are automatically given statutory copyright protection for the life of the author plus seventy years.[8] Automatic protection means the works do not need to registered before they are afforded statutory protection. However, for a work to be eligible for copyright protection, it must be original;[9] it must be fixed in a tangible medium of expression;[10] and it must satisfy one of the statutory jurisdictional requirements.[11]
Once a work is granted copyright protection under Ghanaian law, the author or creator becomes entitled to economic rights and moral rights. In some jurisdictions, moral rights have been categorized. For instance, in the United Kingdom, moral rights consist of the right of paternity, the right of integrity, the right to object to false attribution, and the right to privacy.[12] In Ghana, moral rights simply refer to the author’s right to claim authorship and protect the integrity of his work.[13] In Ghana moral rights are jealously guarded by legislation and are generally, not transferrable.[14]
It is necessary to point out at this stage, that the content of this article focuses mainly on how the economic rights of an author are exploited in the music industry. This is because music distribution and music publishing agreements are more concerned with the exploitation of economic rights than they are concerned with the protection of moral rights. In fact, one may even find that in many music distribution and publishing agreements, the distributors and publishers often require artists to waive their moral rights. This happens often because distributors or publishers want to minimize litigation risks associated with the potential, inadvertent failure of the distributor, publisher or a sub-contracted third party, to properly credit an artist.
With regards to economic rights, Section 5 of the Copyright Act provides as follows:
The author of any protected copyright work has the exclusive economic right in respect of the work to do or authorise the doing of any of the following:
(a) the reproduction of the work in any manner or form,
(b) the translation, adaptation, arrangement or any other transformation of the work,
(c) the public performance, broadcasting and communication of the work to the public,
(d) the distribution to the public of originals or copies of the work by way of first sales or other first transfer of ownership; and
(e) the commercial rental to the public of originals or copies of the work.
In sum, economic rights protect an author’s exclusive right to exploit the work and earn income from it, whether by reproducing it, adapting it, translating it, renting it, distributing it or communicating it to the public. Although moral rights are not transferrable under Ghanaian law, authors may transfer all or part of their economic rights in their works to other entities that have the resources to market and exploit their works, in exchange for payment known as royalties. Under the Copyright Act,[15] a transfer of economic rights in a work is not valid unless it is reduced into writing and signed by the owner of the copyright or by the person authorised by the owner of the copyright for that purpose. This is the legal basis for music publishing or music distribution agreements in Ghana. The subsequent paragraphs shall discuss the legal basis for the distinction between these two agreements.
In the field of music, when a song is recorded, mixed and finally mastered, it is automatically accompanied by two different kinds of economic copyrights. The said economic rights can be classified into composition rights and master rights. On one hand, the underlying composition of a song which includes the melody or harmony and/or the lyrics of the song, is protected by the composition rights. On the other hand, the master rights are the rights that relate to the exploitation of the sound recording.
Section 76 of the Copyright Act defines a sound recording as follows:
“Sound recording means work that results from the fixation of a series of musical, spoken or other sound, or of a representation of sounds but does not include sounds accompanying a motion picture or other audio-visual work regardless of the nature of the material objects in which those sounds are embodied”
A sound recording refers to the reproduction of sound waves into a definite or fixed medium. These sounds can mean anything from a musical instrument being played, to a person singing or giving a speech, or to natural sounds in the environment like the sound of birds chirping. It is therefore important to note that for the purposes of licensing and ownership of music under Copyright Law, a sound recording embodies rights known as the master rights, which are separate and independent of the rights accorded to an author in respect of the underlying composition of a song, such as the melody or lyrics.
At this pivotal part of the discussion, it is crucial to point out that music distribution is the business of collecting royalties or income for sound recordings, whereas music publishing is the business of collecting income or royalties for the compositions. This may be complex to understand. The distinction between the rights to the sound recording, and the rights to the composition, is better illustrated with the following real-life examples:[16]
1. Whenever Michael Jackson’s You Are Not Alone plays on the radio, Robert Kelly along with the publishers of that song, receives a cut from that play. Robert Kelly receives this share because he is the original composer of that song. The performance royalties derived from radio airplay would therefore go to Robert Kelly or any publisher he has contracted to collect performance income on his behalf, pursuant to the provisions of a publishing agreement. Michael Jackson (or his estate) however, would still benefit from the royalties derived from digital streams, digital purchases or physical purchases of the master recording.
2. In 2010, the song “Love The Way You Lie” by Marshall Bruce Mathers (“Eminem”) and Robyn Rihanna Fenty (“Rihanna”) was a global hit. However, although Rihanna was the performing artist, Holly Brook Hafermann (“Skylar Grey”) was actually the composer of this song, until she sold all her rights in 2022. This means, prior to 2022, if anyone had wanted to record a cover of that song (especially the chorus), they would have had to obtain permission from Skylar Grey to do this. However, with respect to the sound recording, that person would not have needed to obtain permission from Skylar Grey, Rihanna or even Eminem, as they would be recreating their own sound, so to speak.
3. In April 2023, Michael Elliot Kwabena Okyere Darko (“Obrafour”), filed a ten-million-dollar copyright lawsuit in New York against Aubrey Drake Graham (“Drake”), claiming Drake's track "Calling My Name" features a sampled vocal phrase “Killer cut, blood. Killer cut.” This audio sample was taken directly from Obrafour’s song, "Oye Ohene". In this example, Drake’s use of the sound recording encompasses both the sound recording itself and the lyrics “Killer cut, blood. Killer cut.” which constitute the composition. From a legal perspective, Drake should have obtained permission or clearance from the copyright owner of the sound recording, as well as the copyright owner of the composition (unless, of course, Obrafour owns both rights).
Music Distribution
Music distribution is basically the process by which music is shared to publicly-accessible stores or platforms – digital or physical. Music distribution services are essential because these days, the dominant mode of music consumption is through streaming and digital purchases. In the past, music distribution used to be a very mystified and complex aspect of the music business. Prior to the advent of digital music distribution platforms like Apple Music, Spotify and Deezer, and prior to the emergence of third-party distributors like TuneCore, Distrokid, CDBaby, Ditto and Amuse, music was distributed physically by music distributors who handled the shipping of music in physical formats such as cassette tapes, CDs and vinyls into various music retail stores. Record labels would make all kinds of deals with these distributors just to get their artists’ records into the major stores. This engendered much gatekeeping.
Physical music distribution is fading out in today’s world, which has resulted in a shift of focus to digital purchases and streaming. Now, there are many streaming sites, digital music stores and social media platforms, that facilitate the distribution of music one way or the other. This is typically done through international third-party distributors such as TuneCore, Distrokid, Ditto and Amuse. In Ghana, there are a handful of local distributors such as Crux Global, Apprise, Eastern Child, among others. All these distributors serve as a nexus between digital music stores and the artist’s bank account or wallet. When a song is submitted to the distributors, they submit the song to all the major digital music stores, subject to the correct metadata being provided by the artist (song title, cover art, name of the songwriter, lyrics, etcetera). The song is then given a unique International Standard Recording Code (ISRC) or Universal Product Code (UPC). These codes operate as digital fingerprints for the songs, and are used for sales-tracking by the digital stores. The bank account of the artist or record label is thereafter credited periodically with royalty payments based on the ISRC or UPC.
The total income generated from the distribution of a master recording is typically accrued from:
a. Master Royalties (physical purchases, digital purchases, streaming royalties, digital performance royalties);
b. Synchronization Royalties (royalties paid for including the sound recording in some other content such as video advertisements, TV shows, movies, video games, etcetera); and
c. Neighbouring Royalties (royalties paid to the master right-holders for public performance of the sound recording – this is largely dependent on the jurisdiction concerned, because some countries limit royalty payment in this regard, to only the composers or songwriters of a song. In Ghana however, Section 37 of the Copyright Act guarantees entitlement to neighbouring royalties.)
A songwriter or composer does not derive his or her income from a music distribution agreement. Although a composer may also be entitled to participate in profits from synchronization licences, it is important to emphasize that the aforementioned royalties collected by music distributors primarily relate to the sound recording. Accordingly, the entities to be paid directly here, are the recording or performing artists (where they are independent), or the performing artist’s record label who would subsequently determine which proportions of the royalties the artist is entitled to, based on the terms of a recording contract.
Music Publishing
As explained earlier, music publishing is the business of collecting royalties for the underlying composition of a song. Historically, music publishers were not radically different from book publishers – they printed and sold copies of sheet music just as books were printed and sold by book publishers. Over the years, the advent of mechanical royalties, film and television have caused the publishing landscape to evolve and expand the scope of duties for music publishers. Songwriters or composers began using music publishers to pitch their written compositions or lyrics to major record labels or recording artists, and negotiate the fees or royalties for their usage or mechanical reproduction on a record. Songwriters also started utilizing publishers for collecting royalties where films and television programmes used their songs for advertisements or as theme songs. Today, the kinds of publishing royalties include:
a. Print Royalties (traditional income made from selling compositions in the form of sheet music);
b. Mechanical Royalties (royalties paid to the songwriter by the performing artist or record label for mechanical reproduction of the composition on a record);
c. Performance Royalties (income from the public performance of the composition on television, radio, restaurants, clubs and other commercial public spaces);
d. Synchronization Royalties; and
e. Cover Royalties (royalties paid to the composer for use of the underlying melody or lyrics of the original song in a newer rendition),
In a publishing agreement, the composer or songwriter typically assigns the copyright in their compositions to the music publisher in exchange for royalties. The publisher by virtue of the assignment, has the legal right to exploit the economic rights in the composition and collect royalties on behalf of the composer or songwriter. There are many types of publishing agreements. A publishing agreement may be an administration deal, a work-for-hire publishing deal, or a co-publishing deal. In major publishing deals, the composer may be paid a hefty advance which is recoupable from the composer’s future royalties. Due to the complexity of royalty collection in the global market, smaller publishers often have to engage in sub-publishing – that is, delegate their catalog of songs to major publishers for collection within their respective territories. Some of the major publishers in the global market include, inter alia, Warner Chappell Music, Universal Music Publishing, and Sony Music.
Another important thing to note about publishing is its territorial nature. The most important step in music publishing is for the publisher to procure that the songs or compositions are registered with the relevant collective management organization (“CMO”) within the songwriter’s jurisdiction or the jurisdiction where a majority of the income collection is going to be done. This is because the publishers or sub-publishers typically collect the publishing royalties (especially performance income) through the CMOs. In Ghana, the Ghana Music Rights Organization (“GHAMRO”) is the central CMO that represents the rights of music copyright holders. It was established pursuant to section 49 of the Copyright Act. In other jurisdictions there are CMOs like BMI/ASCAP (United States), PRS (United Kingdom), SAMRO/SAMPRA (South Africa), and MCSN (Nigeria).
Relevance of Knowing the Distinction
In today’s music industry, being a talented singer, rapper or songwriter is simply not enough to have a successful career. For an artist to enjoy financial stability while maintaining creative control, that artist must be able to appreciate (or surround himself with a loyal team that appreciates) distribution or publishing contracts, licensing, royalties, marketing, and networking. In other words, for an artist to thrive and enjoy a sustainable career, it is crucial for that artist to have a comprehensive understanding of the business aspect of music. Therefore, the following include reasons why artists should endeavour to know and utilize both publishing and distribution agreements:
1. Reach:
In Ghana, music publishing agreements are not as popular as distribution agreements. This is quite understandable because not much is seen in the publishing department. The music publishing sector in Ghana is not as well-structured or efficient, as is the case in countries like the United States, the United Kingdom or South Africa. However, music publishing agreements are also not popular in Ghana simply because many artists do not even know or understand the difference. It is worth noting that artists who do know the difference and make use of that knowledge, experience a wider reach of audience for their music.
2. Informed Decisions:
The music industry can be a cruel world for commercially naïve or ignorant artists. Albeit there may be a number of benevolent record labels or investors out there, an artist who does not appreciate the business aspect of music is likely to get shortest end of the stick. Therefore, understanding these concepts ensures that the artist is treated fairly. The artist becomes an active participant in his or her own careers, by making strategic and informed decisions, and advocating for his or her own interests.
3. Respect and Empowerment:
Music is not just a passion; it can also be a profession that commands respect. Embracing the business side of music empowers artists, gives them an edge over their competitors, and unlocks a world of opportunities. Furthermore, artists who comprehend revenue streams, budgeting, financial management, and who make informed decisions, tend to garner more respect from investors and labels.
4. Longevity and Sustainability:
Only a few artists get to enjoy a lifelong career. Societal changes in music tastes or trends heavily contribute to this, and only the most versatile or adaptable artists are able to remain afloat for a long period. However, by embracing the business side, artists can establish a solid foundation for their artistic endeavors, and this can ensure longevity in the music industry. At the very least, executing good publishing or distribution deals can ensure long-term financial stability, even long after the artist is past his or her prime. Such maximization of revenue opportunities may be done through live performances, merchandise sales, synchronization or other kind of licensing deals.
5. Relationship-Building, Networking and Collaboration:
Relationship-building, networking and collaboration form an integral part of the music business. Understanding the business aspect of music has its fringe benefits: artists can establish valuable connections with industry professionals, such as managers, agents, producers, and other musicians. For example, a songwriter or composer under a publishing agreement, may negotiate for the Publisher to procure a major artist to make a cover of that composer’s song. Learning to navigate the nuances of distribution or publishing contracts can lead to more mutually beneficial collaborations. Understanding the business side also facilitates effective communication between artists and their teams. This ensures smooth workflows and maximizes creative output, as the artist is able to focus on developing his talents, knowing that his team is properly handling the business aspect.
Conclusion
Music transcends the audio files we stream on Spotify, or the music videos we watch on YouTube. The amazing songs and flashy music videos that we hear and see, are merely small indications of the vast and intricate business in the operational side of an industry, actually worth billions of dollars. The backend of the music business encompasses music producers or sound engineers, songwriters, music publishers, performing rights organizations, music distributors, artist managers, investors, sponsors, lawyers, tax or financial consultants, auditors, marketers and public relations personnel, just to name a few.
The economic value of the music industry cannot be overemphasized. This is because of the wide spectrum of employment, business and investment income it generates for the various stakeholders. Therefore, it is pertinent that emerging or established artists (both performing artists or songwriters) endeavour to understand the operational or business side of music in order to make the most out of their art or talent.
The following are some closing remarks for aspiring musical artists:
1. Surround yourself with a team if you can afford it. Some key members of your team include a manager, a lawyer, a booking agent, a marketer or promoter, an accountant, a distributor, and a publisher. This is particularly applicable to emerging or independent artists. Artists signed to record labels often have access to ready-made professionals who come as part of the package. However, it is best for an artist to have his or her independent lawyer for example.
2. Upon securing music distribution arrangements, ensure that you also procure the services of a music publisher, in order to get the best out of your music. This is especially so when you are the composer or songwriter, as well as the performing artist. It is important to note that some music distributors offer both distribution and publishing services; such distributors can also be very useful to your cause.
3. Prior to execution of any legal documents (such as a recording contract with a label, a music distribution agreement, or a publishing agreement) be sure to procure the services of a lawyer with expertise in music contracts. That way, your interests will be maximized and the number of risks you could potentially expose yourself to will be reduced.
4. Endeavour to always have split sheet agreements with any collaborators (co-songwriters and beat producers) whom you work on your music with. A split sheet agreement reduces into writing, the ownership percentages in a composition, for the purposes of publishing. This does not only ensure that all collaborators are on the same financial page, but also facilitates the efficient collection of publishing royalties on your behalf. It will also minimize the risk of litigation or disputes, especially if you end up with a hit song that brings you millions of dollars.
5. The creative aspect of music is important. However, if the intention is to build a career out of your musical talent, then it is important to note that it pays to understand how your economic rights are exploited.
6. Your music is your money. Literally.
[1] Copyright Act, 2005 (Act 690)
[2] Copyright Regulations, 2010 (L.I. 1962)
[3] Berne Convention for the Protection of Literary and Artistic Works, September 9, 1886, revised at Paris July 24, 1971
[4] WIPO Copyright Treaty (WCT) (1996)
[5] Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M
[6] See Order 63 of the High Court Civil Procedure Rules, 2004 (C.I. 47)
[7] Copyright Law, 1985 (PNDCL 110)
[8] Section 12, Act 690 supra
[9] Ibid, Section 1(2)(a)
[10] Ibid, Section 1(2)(b)
[11] Ibid, Section 1(2)(c)
[12] Part IV of the English Copyright, Designs and Patent Act, 1998 (c 48)
[13] Section 6, Act 690 supra
[14] Ibid, Section 9(1)
[15] Ibid, Section 9
[16] It is important to note that these real-life examples have been simplified for the purposes of illustration. There are, of course, several nuances to each of them. However, for the sake of brevity, the intricacies of those facts cannot be explored in this article.