A few months ago, I was assigned to interview Joel Falconer, a freelance musician in Australia. My first question about that was, “what’s a freelance musician?”

Well, Falconer explained it to me: His band Midnight.Haulkerton, along with developing its own repertoire, also writes and licenses songs for marketing campaigns (Though Falconer stresses that they’re very stringent about choosing which companies and organizations to work with.)

Sounded simple enough, a few e-mails back and forth, we discussed client relations and productivity. But before the interview concluded, contact suddenly ceased.

It turned out Falconer had been involved in a rather nasty intellectual property dispute with a client and eventually resolved it, giving our discussion and entirely new angle on a subject freelancers don’t think about often enough - intellectual property rights.

What follows is a slightly out-of-order e-mail conversation about marketing music and protecting intellectual property.

RJ: How exactly would you define being a freelance musician?

JF: For decades companies have been able to hire a songwriter and some session musicians to write a jingle or theme song of some sort for advertising and marketing. The song is written–usually in haste–and then a bunch of hired musicians go into a studio and put it together.

The song is never publicly attributed to those who wrote it, and the relationship ends there. The copyrights go to the company.

But in our case, being a ‘freelance musician’ means that when you ask us to write a song, we take on the role and we put all that we’d put into any other song, into the song you asked us to write. You don’t pay for some piece of faceless, forgettable music. You pay for a song that’s been written in the style of Midnight.Haulkerton, you pay for the endorsement of the band, and you pay for a song that is as steeped in the ethos and mythos of the band as any other song we’ve written.

Because of this, we keep the copyright and license the rights to the song.

RJ: What kind of clients do you take on?

JF: Because we’re not just pumping out jingles, and crafting real, meaningful songs, we take on clients who we can feel inspired writing for, whom we respect, and who we believe are doing something good for the world. Other than that, we’re pretty much open to anything. Since the band can’t contradict its official stances, we don’t take clients who are leading contributors to global warming or sweatshop manufacturing, or basically in any ethically compromised position.

This maintains our integrity, and boosts the integrity of the clients we do take on.

In the end, it’s a matter of whether the potential client has anything to inspire us with.

RJ: Now, intellectual property issues. Without getting yourself into too much trouble, can you describe the copyright situation?

JF: An organization expressed interest in having Midnight.Haulkerton develop a theme song for their marketing and promotion purposes. They found us through the Sydney Morning Herald and the tunebacks. The cause seemed like a good one, and something that I could easily be inspired to write about and believe in. This is really important to me, and if you dangle a million bucks in front of me to write a song I won’t do it unless I can believe in what I’m creating.

After a phone conversation with the project’s founder, I decided it was worth going ahead with. The verbal agreement was that I would write and record a song that they could use in DVDs, offer for download on their website, and so on. They were also interested in having me do some live performances to promote their cause and generate the interest of the target market who normally would not be so interested in what they wanted to do.

The other component of the verbal agreement was that at no point would the intellectual property of the song be transferred. This is band policy. I’ve made legally binding agreements with other members of the band that include clauses that prevent us from giving away those rights when we create something as or for the band, so it was not something I could give away anyway. The plan was that there’d be a basic licensing agreement which granted exclusive commercial use of the song for a period of two years. There was to be no fee, because I believe strongly in the cause they claimed to be representing.

The song was written and turned into a demo. I arranged studio time here in Queensland to get it completed. Personal business had me travelling before we recorded, and as coincidence had it, I was going to the part of the country the organization was based in. So we met and had lunch, and before I knew it the founder had organized for the studio version to be recorded in his musician friend’s studio. Though I did not complain at the time, this decision was made without consulting me to a great degree; I thought it was a good plan and would make for a better song since the studios were supposedly superior.

Not only were they crap studios, but this was one of the biggest mistakes I made.

Several months later, shortly after the final recordings were mastered, I received an email that basically claimed copyright of the works “under Australian copyright law” - which they knew none of and I know quite a lot of. Knowing intellectual property law is essential in this business. They claimed that as they funded the production it was a work for hire and the copyright in the lyrics and music belonged to them. But that’s where they were wrong; they funded the production in a studio, not me. I didn’t get anything from this endeavor; I didn’t charge a single cent. I was doing it only because I believed in the cause.

Not only that, but there was the verbal agreement between myself and the founder that I would retain my rights, and unlike him I had been smart enough to get those verbal agreements witnessed and recorded.

This kind of treatment has been the plight of artists for a damn long time, and it was clearly a malicious, immoral grab at something that was not theirs. They received in response a detached, business-like (but not in any way insulting or derogatory) message that instructed them to revoke their claim, remove the intellectual property from their website and recall any dissemination of the product and refrain from using it until we had a licensing deal in place. It also showed the flaws in their claim of my copyright and asked for evidence to the contrary, such as a work-for-hire agreement.

What ensued was a barrage of childish, misinformed attacks on my management and petty emotional appeals to me to stop being so heartless, when all that my management and I had done was revoked our permission to use the copyright only until such a time as the licensing deal was in place. The licensing deal we had in mind, by the way, was going to be pretty generous and practically give it away for two years anyway.

After about a week we got the organization back to the negotiating table, and we sent some questions because we needed certain information in order to draft an agreement that would serve their interests. Now, this must be clear: we were going to draft a fair agreement, but it was going to be in their favor, and furthermore, the purpose of the questions we sent was to do nothing more than retrieve information to determine which rights we could grant them.

In other words, questions that enabled us to give to them. In response we received vitriolic and insulting responses. For instance, we asked which dates, tentative or not, were planned for live performances so that we could basically sign ourselves over for those days. To that question we were told, “if Midnight.Haulkerton is unavailable, we’ll hire the Rolling Stones instead.” It was the first time I’d ever seen such pathetically childish behaviour in my dealings with other organizations and businesses who were supposedly represented by grown men. These charlatans matched the maturity level of my two year old son.

Shortly after we received this not particularly helpful response to our questions, they sent another message that said something about our attitude (despite being far too generous for these scum) being “prima donna” and that they’d consider terminating the relationship over the weekend. I breathed a sigh of relief at that point, because this organization just didn’t know how to work with intellectual property or the music business and it was becoming too much of a liability.

Of course, before terminating the relationship, they tried to get me to give away those rights yet again. It ended in a checkmate; they couldn’t use the song and we couldn’t use the production they had funded. For a couple of days, while we knew giving our rights away was the wrong move, we regretted not being able to use that recording, but the more we listened to it, we realized they’d overly commercialized it to the point where it no longer embodied the Midnight.Haulkerton sound or spirit. It was much better for us this way.

Word of warning: even if you have the law on your side when it comes to things like retaining your copyright, if you haven’t got an agreement on paper from the outset, some people will throw a tantrum when they don’t get their way and go home with their toys - no matter how stupid those requests are.

RJ: Ouch. As a result of this experience, have you made any changes to the way you do business?

JF: I always took notes before and after each call so that any verbal agreements would be recorded, and I’d share these with management. Now, we do a follow-up email pretty much straight away with the other party so they have the opportunity to verify details. If they were looking for an easy ’starving artist’ target whose property they could steal with ease, this sends the right message and they think twice about screwing you.

We also get an agreement upfront stating that all intellectual properties will remain ours and that the usage of the song will be governed by a licensing agreement. This usually involves an exclusivity clause for commercial use for some period of time, especially if they are paying customers.

It has also added a degree of cynicism. We’ve been burned in the past, personally and otherwise, but we saw the cause this organization supported as the main reason we wanted to be involved. I think we are now a lot more skeptical of those who say they support a particular cause and even base their entire venture around that lie.

Of course, there are many who are genuine, and they are always easy to pick once you get to know them.

RJ: Are you into hand-signed contracts?

JF: We use digital contracts wherever possible (non-disclosure agreements for example), but for something like a licensing contract, it’s better to get it on paper for safety’s sake - digital agreements are still relatively new in the legal system.

RJ: What advice would you offer other freelancers, particularly those in creative fields, on protecting intellectual property rights?

JF:Study copyright law. Seriously, do a course, memorize the Copyright Act, know those rights like the back of your hand. If you know them, you can protect them pretty easily. The second step - after you’ve learned the law from top to bottom, is to determine at which points in the creative and business process you’ll need legally binding agreements that cover a range of issues. Use and enforce them. Do not back down and never give those rights away.

You should, of course, license them.

RJ: Finally, creative fields like music are hard enough when you aren’t a freelancer. What advice would you give to other creative freelancers
in general?

JF:A lot of musicians run their bands like a lunchtime club. Run it like a business. A truly independent band is near impossible to create success for, because that means acting as your own publisher, printer, distributor, retailer, etc. Run your band like a business that does business with other entities to fulfill functions you don’t want to, or have the resources to worry about.

The Internet is a truly powerful medium which eliminates the need for a lot of the middlemen, but so long as you are willing to work with other businesses and learn how to pitch your own business to them in a way that gets them on board, you’re a step ahead of the game.