You could “eat the rich,” as the American band Aerosmith advises – or better, get rich by making music! Right. As Austrian legend Falco noted in his hit song “Rock me Amadeus” (1986): Making good music doesn’t guarantee an income: “… woher die Schulden kamen war wohl jedermann bekannt…” (“… where the debts came from was probably known to everyone…”). If you are a composer or musician and your work is becoming popular, it’s time to protect your intellectual property and turn your creative efforts into a business.
NO REGISTRATION REQUIRED
Songwriters’ compositions and lyrics in Austria enjoy protection under the Austrian Copyright Act (Urheberrechtsgesetz). Protection of the author’s rights in all artistic domains is guaranteed automatically, and requires no formal registration. But it is essential to be named as author, a status which is non-transferable. If you do not claim your right as the creator, the law will assume that the publisher or the editor is entrusted with your copyrights. If you’re shy, use a pseudonym. In the 1960s, Mick Jagger and Keith Richards of the Rolling Stones wrote songs under the pseudonyms Nanker/Phelge’and in the ’70s produced albums under The Glimmer Twins. If the author insists on anonymity, third parties are not permitted to name them in publications of their musical work [Sect. 20 of the Austrian Copyright Act].
Copyrights comprise a bundle of transferable rights, including the right to produce copies and distribute them. These rights expire 70 years after the author’s death. Thereafter, works go into the public domain and can be reproduced and circulated freely by anyone. Recording, distributing and marketing music is a costly business, so rising stars may decide to partner with a professional producer, for whom they record and play or sing exclusively in exchange for royalty payments. But avoid getting “locked in” – as Jimi Hendrix was. The legendary guitarist promised he’d hold three recording sessions per year for three years and produce four songs per session, in return for as little as roughly 1% of the records’ retail selling price. Under Austrian law, Jimi Hendrix could have terminated the contract after one year, pursuant to Sect. 31 and 68 of the Austrian Copyright Act. Promotion is essential. When transferring the rights for already-created musical works for a specified time period (e.g. five years], the artist should be cautious: Such a contract may only be terminated early for a good reason, e.g. if the publisher, despite notice of the artist’s dissatisfaction, still does not show sufficient efforts to publish and market the work [Sect. 29 of the Austrian Copyright Act].
BECOME A MEMBER OF AKM
Music can motivate people to stay longer in shops or bars. But using music requires prior permission (i.e. a license) from the composer or authorised representative, for cover bands, radio broadcasters, and shop or bar owners. To simplify the process, most copyright holders have a membership agreement with the AKM, a body which grants licenses in Austria against payment of a license fee. The fee is calculated based on the square meters of the sales area (for shops) or the average monthly guest frequency (for restaurants). AKM’s revenues are distributed to its members, i.e. copyright holders. AKM members who are playing a concert should not forget to send their set list to AKM to receive accurate royalties on top of the fee paid by the event organizer. The AKM – which also pursues copyright claims in court – is regulated by the Austrian Law on Collective Management Organizations (Verwertungsgesellschaftengesetz).
RIGHTS OF BAND MEMBERS
If you play in a band, the rights of the songwriter(s) must be distinguished from those of the musicians that record or perform the songs. Only the songwriter enjoys the rights of a creator, composer and text writer; the others are credited only for their contribution to the performance. Band members will often explicitly or implicitly agree on the division of revenue deriving from their performances. A band is considered a civil partnership (Gesellschaft bürgerlichen Rechts), governed by contract. The band’s name is usually owned jointly by the band members (unless it is the personal or artist name of a band member). For merchandising purposes, the band members should jointly register the band name or band logo as a trade mark. Prior registration of a band name, however, is not necessary to prevent a former band member from using the name for himself [Austrian Supreme Court “OGH” 4 Ob 21/95, 4 Ob 40/95].
MERCHANDISING FAN ARTICLES
Merchandising can be an important source of income. The Experience Hendrix LLC, a company owned by the Hendrix family, has registered the words “JIMI HENDRIX” and an image of the legendary guitar player’s signature as a trade mark with the Austrian Patent Office for several product classes. Registration of a trademark in Austria can be done online, and usually takes anywhere from around 10 days (“fast track”) to three months. For a fee of €280, bands can pick three product/service classes (out of 45), and pay €75 for each additional trademark class. For example, Class 25 includes “clothing, footwear and headware for human beings,” while Class 14 includes “key rings” and other “jewellery.” The registration is valid for ten years; extension of the registration after that period triggers a new fee. But a trade mark registration alone doesn’t mean you can market a brand: So the copyright holder for the Austrian music group Zillertaler Schürzenjäger got an interim injunction against a “Schürzenjäger”-branded sausage, even though the defendant had registered the brand as a trade mark. The trade mark owner had hoped to sell the Wurst at the band’s shows – and the Austrian court found that fans could mistake the sausage for the band’s official merchandise [OGH 4 Ob 2200/96z].