I was a full-time musician before law school, but Standing on the Horizon is the first album as a band leader (playing tenor sax, soprano sax and bass clarinet) consisting of my own compositions played with four extraordinary, Grammy-nominated and award-winning musicians. In early October 2023, the album was released on Spotify, iTunes, Pandora and Amazon Music, along with 25 or so other streaming services through CD Baby, and pressed into CDs through DiscMakers. (I know, most people don’t have CD players anymore, but it’s nice to have something physical — and liner notes are a lost art… But the normal listener can go to http://markkaufman.hearnow.com, where all the streaming services await.)
Having provided advice to clients about securing rights in their creative works to enable enforcement and compensation (and obtaining rights from others to avoid any disputes), I didn’t want the “cobbler’s children to go shoeless.” So, I embarked on carrying out my own advice.
First, I secured rights in the musical performances of the other musicians. At rehearsal, each of the musicians signed a release that said any copyrightable contribution is a work made for hire — and to the extent that their contributions were not works made for hire, they assigned all their rights in their performances to me. To cover their rights of publicity, they also consented to the use of their names and likenesses in connection with promoting the songs, album and live performances.
Then, I registered the copyright for each of the compositions. That entailed sending the sheet music, the lead sheets, bass and saxophone parts, and registering them as unpublished works. You’re entitled to 10 unpublished works in one copyright registration. It’s an economical way to register the compositions, before releasing the songs into the world.
We rehearsed in late June and recorded on July 1, 2023, at Tedesco Studio in Paramus, New Jersey. In only five hours of recording time spread out over a single day, the quintet recorded nine tunes plus two improvised saxophone duets. (If I hadn’t committed to “No more than two takes per song!” the desire for perfection would have prevented the project’s completion.) Katsuhiko Naito mixed and mastered in his Brooklyn studio before I visited him for one afternoon of fine-tuning. (Again: the focus was on getting it DONE.)
Next, I got licenses for the artwork: First, from the photographer who met me by the Hudson River and did my photo shoot. Understandably, he flat-out declined to sell or transfer his copyright to me. I changed that agreement into a non-exclusive license to me in perpetuity, to use the photos as I wished and to make derivative works of them — for example, I can put them on a poster, or I can change what they look like. I did the same for the artist who had sketched portraits of me back in 2008 and 2016 (which arguably still look like me, right?).
I then registered the copyright to the sound recordings. The applicant is entitled to include up to 20 entries for registration of an album of music. Because the sax duets were improvised, they were not sufficiently “fixed” to be registered as compositions, but still merited registration as sound recordings. After completing the application on the U.S. Copyright Office website, I sent them two copies of the CD as the “best version.” They actually prefer that format. (So, at least someone still has a CD player!)
To upload the music to CD Baby, the composer (me) had to be associated with a publisher (me), so that the streaming services could pay “mechanical royalties” (a throwback to when music was physically distributed) owed for the so-called “writer’s share” and “publisher’s share” of the compositions. So, I am now a/k/a “Alternate Route Records,” the better to receive those additional, vast sources of compensation…
Lastly, I became a member of BMI — even though I think it’s rather hopeful on my part that there’s going to be any public performance of these songs, other than my playing my own music. But if the music does get onto the radio, or does get onto some kind of a public performance, BMI will be able to keep track of it and pay me performance royalties.
I don’t know if the pennies will add up to any significant amount, but It’s been immensely gratifying not just to check off “record an album of original music” from the bucket list, but to make an excellent product with outstanding musicians.