What songwriters can do to protect their ideas when submitting demo tapes to publishers
Every songwriter has heard the words “sorry, we’re not accepting unsolicited material” from at least a dozen publishers. In fact, in a recent informal survey conducted by Law On the Row, two-thirds of the thirty publishing companies contacted indicated that they do not accept unsolicited material. Additionally, the survey revealed that none of the “major” publishers accept unsolicited material.
As unfortunate as this information is for the aspiring songwriter, it is a good business model for the publisher because it avoids idle submission claims — the theory that a publisher “stole” an idea from a songwriter’s demo tape and used it to write another song based on the same idea or concept. This genre of litigation is also prevalent in Hollywood, where movie ideas are stolen almost as often as hooks in Nashville. Is there anything a songwriter can do to protect his or her material when submitting it to a publisher? The answer, of course, is yes.
Register the copyright. While the $30 fee is sometimes a burden on the struggling songwriter’s budget, registration of the copyright is a beneficial and necessary first step in the process of protecting a copyright. Even though the copyright effectively exists from the moment a song is created, registering the copyright empowers the writer to collect statutory damages (i.e. proof of actual damages is not necessary) and attorney’s fees in a submission claim.
Keep good records of all submissions. The first element a songwriter must show in an idea submission claim is access by the defendant publisher (hence the reason many publishers do not accept unsolicited material). You can establish access by maintaining accurate business records of communications and submissions. (The second element, substantial similarity, is a more subjective determination which must be proven by expert testimony).
Establish a relationship with a reputable publisher. By establishing a good, working relationship with a reputable publisher, you minimize your risks and increase your chance of success as a songwriter. Of course, this is the “catch 22”: how to establish a relationship with a publisher without submitting material.Exposure, exposure, and more exposure. Play or have your material played at every opportunity you can — showcases, writer’s nights, gigs, etc. Don’t play your best material — play your “B” songs, i.e, those that are good but don’t necessarily “knock your socks off.” This is not to imply that every audience is full of infringers waiting to take your hook into the studio and “steal your song,” but the fact is that the typical Nashville audience is probably full of other songwriters whose subconscious minds might “soak up” your idea and regurgitate it in the form of a new song incorporating your idea.
Hire a reputable song-plugger. Nashville has a generous supply of good song-pluggers — people who pitch your songs to major labels for a fee, usually $150-300 per month. Find one with a good reputation and hire him or her. Remember to have all agreements reviewed by an entertainment attorney.Join NSAI. Nashville Songwriters Association International is a good organization with services that will assist you in developing as a songwriter and reaching reputable publishers.
Of course, none of these suggestions will guarantee that your submitted material will not be used illegally by a publisher or songwriter. If you feel you have been the subject of blatant theft of intellectual property, contact a reputable attorney.
This article originally appeared in the print edition of Law on the Row, Volume 1, Issue 1, on September 9, 1999.