Artists and creatives can often find themselves relying on agents, managers or labels to handle the business and legal side of things and to pay musicians their entitlements for gigs, events and royalties within a reasonable period.

But if we’ve learned anything from Sixto Rodriguez, it’s that it is never wise to take anyone at face value where money is involved.

Luckily, the correct process involved in recovering a relatively small unpaid fee (under $10,000) in a way that does not inflame the situation or result in unnecessary litigation is a lot easier than it seems.

A straight-forward debt recovery process unfolds, in many ways, like a well-crafted playlist: equal parts listening, clear communication and structure. Then again, sometimes it requires turning up the intensity with a letter of demand.

Track 1: Shoegazing, Emailing 

Just like the first song on a new playlist sets the mood and establishes expectations, the first track in securing an unpaid fee should be carefully considered before any action is taken. Begin with a slow-building shoegaze strategy that conveys a detached and non-confrontational message.

This can take the form of a quick email or phone call. Keep it brief, casual and indifferent. Importantly, make sure that you give the person who owes you money enough time to respond, for example, 2 weeks. Putting undue pressure on someone to fast track a payment is the quickest way to aggravate a relationship unnecessarily.

Track 2: Indie Pop, Reminder Time

If a few weeks pass and your first communication does not achieve the result or response you are looking for, move to track two with a follow-up email. Your next step should be to seek to build on the energy and momentum you created in track one. In spite of your feelings of frustration and disappointment, the idea is to send an angst-free tune to the inbox of the person who owes you money.

Get attention on your outstanding payment by getting in their head like an earworm – with sound repetition and friendly reminders.

Like a good indie-pop hook, your main refrain should be clear, unambiguous, non-abrasive and melodic.

Peter, Bjorn & John’s ‘Young Folks’

A template you may wish to consider using:

Dear [insert agent’s name],

I hope this email finds you well.

I just wanted to follow up about payment for [insert name of event/gig/royalty] and to check whether there has been any progress. I would be grateful if you could please make the necessary arrangements for [insert relevant $$$ amount] to be deposited into my account as soon as possible as there has already been a considerable delay with your payment.

Thanks very much.

Warm regards,

[insert your name]

Track 3: Punk Rock, Letter Of Demand

If you are still having no luck recovering payment after a number of weeks/months pass, even after sending several follow up letters and email reminders, then it is time to “turn it up to eleven” with track three by sending a letter of demand.

A letter of demand is a loud and unmistakable statement and often the final step before commencing legal action. It usually happens when you have made several unsuccessful attempts to have your invoice paid and sends a message that you are taking more serious action.

As a letter of demand shows a degree of formality and represents a serious step towards initiating legal action, it can inflame a dispute. Generally, however, it is a cost-effective and efficient way to recover unpaid fees without the need to go to court.

Your letter should include:

• the sum of money owed to you
• the service provided by you
• when payment was due

You may wish to include a warning that you will consider pursuing legal action if payment is not made by the specified date.

Attach any related documentation, such as the original payment agreement, dates of phone calls or previous emails requesting payment.

A template letter you may wish to consider using:

[Your name/business name, address and contact details]

[Agent/manager’s name and business address]

[Subject heading: Letter of demand for outstanding fee payment]

Dear [insert agent/manager’s name]

RE: OUTSTANDING PAYMENT

I am writing in relation to the outstanding fees totalling [insert total dollar amount, including GST]. This amount relates to the [insert name of event/gig/royalty for which you are owed money] when I performed on [insert date].

I refer to my invoice dated [day/month/year] that was due by [date payment was due] and remains outstanding.

Please find enclosed a dated copy of the invoice. I have also attached my previous requests for payment to be made:

1. Letter dated [when first request was made]
2. Letter dated [when second request was made]

I ask that you pay me the amount of [insert total dollar amount, plus a late payment interest as agreed in our contract dated (where a late payment interest clause is in your agreement)], by [insert date – generally allow 7 days].

Payment should be made to [insert your name including bank account details and your address].

If payment is not received within 7 days of receipt of this letter, I reserve the right to take legal action to recover the monies without further notice.

Yours sincerely,

[insert signature]

[insert your name]

[date]

It is important that the information and details included in the letter of demand are completely accurate to avoid someone saying that it is false or misleading.

O-riginal tip: Send the letter by registered post and request a ‘signed proof of delivery’ card. Retain a copy of the letter (as well as all other correspondence) for your own records and keep a copy of the proof of delivery card in case you need it as evidence in court. Often the letter of demand will be considered as evidence that you took reasonable steps to recover the funds.

While you can send a letter of demand yourself, it can be much more effective if the letter is sent from and includes a law firm’s letterhead. Most firms charge a set and inexpensive fee for a letter of demand. Make it clear in your instructions to a lawyer that you are only requesting a letter of demand and not legal advice, as this will avoid unnecessary expense.

Track 4: Heavy Metal

If the due date specified in your letter of demand lapses and you have not received payment, you may wish to move to track 4 by taking action in the Small Claims Court or equivalent in your State or Territory.

This is the heavy metal stage in the debt recovery playlist where the situation has escalated and unpleasant conflict is now inevitable. Like some metal bands, the court process can sound intense, discordant and uncomfortable. However, there is a clear and relatively straightforward process.

To bring a matter in the Small Claims Court in your State or Territory, you need to file an action. Where you commence an action will depend on the amount you are owed and in which State or Territory the debt arose.

The Small Claims Division of the NSW Local Court is for debts of $10,000 or less and has been set up with simplified procedures so that you do not need to have a lawyer.

How to start a claim in your local court (NSW):

1. File a Statement of Claim form. This is available from the court by calling (02) 9287 7923 or downloading a form online.
2. Include your name and address as the ‘Plaintiff’ and the details of the person who owes you money (the ‘Defendant’). Also include relevant details of the claim, for example, invoice numbers as well as when the debt became due. The Statement of Claim form has instructions on how to complete it. You can also make an appointment with the chamber magistrate at your nearest Local Court who can help you to fill out and lodge your statement of claim. More instructions on completing forms can be found here.
3. File four copies of the completed Statement of Claim with the NSW Local Court or online registry and pay the filing fee (approximately $97). The Court retains the original.
4. Serve a sealed copy of the Statement of Claim on the person who owes you money. There are rules that must be followed on how to properly serve a document. You or the person who serves the document should complete an Affidavit of Service.

Throughout the process of recovering an unpaid fee, the number one rule is to remain calm and respectful. It can be a tiresome and frustrating task trying to recover money, however, any unprofessionalism on your part could result in bad blood and potentially destroy the possibility of ongoing business relationships.

Further Information

Template and sample letters of demand:

• Business.gov.au
• Arts Law
• Law Access

Filling out a statement of claim instructions.

How to file an action in your State or Territory:

• Victoria

Commence your claim in either in the Victorian Civil and Administrative Tribunal (depending on the nature of the dispute) or the Magistrates Court. The Victorian Magistrates Court does not have a small claims division but has jurisdiction to hear claims up to $100,000.

• NSW

The Small Claims Division of the Local Court deals with claims up to $10,000. If you are owed more than $10,000 but less than $100,000, your matter will be in the General Division of the Local Court.

• Western Austalia

Commence your claim in the Magistrates Court if you are owed less than $10,000. If you are owed between $10,000 and $75,000, you can commence a general procedure case in the Magistrates Court.

• South Australia

The Small Claims Division of the Magistrates Court deals with claims up to $6,000. If you are owed more than $6,000 but less than $100,000, the Magistrates Court hears the claim in its General Division.

• Queensland

Commence your claim in the Queensland Civil and Administrative Tribunal if you are owed up to $25,000. If the amount is more than $25,000 but less than $150,000, it will be heard by the Magistrates Court.

• Tasmania

Commence your claim as a Minor Civil Claim of the Civil Court of the Magistrates Court if you are owed $5,000 or less. To recover amounts from $5,001 to $50,000 you need to file a Civil claim. The Magistrates Court hears claims up to the value of $50,000 or above if both parties agree.

• Northern Territory

If you are making a small claim for up to $25,000 you can apply to have your matter heard through the Northern Territory Civil and Administrative Tribunal. To recover an amount between $25,001 and $250,000 you can apply to have it heard in the Local Court. If your claim is above $250,000 it will be heard by the Supreme Court.

• Australian Capital Territory

Commence your claim with the ACT Civil and Administrative Tribunal (ACAT) if the amount is up to $25,000. Claims up to $250,000 must be brought in the Magistrates Court unless both parties agree to use ACAT.

What didn’t cross my mind, until recently, is how performing a cover of another musician’s song may actually be against the law.

Copyright Protection Of Songs

Copyright law exists to protect every song by virtue of its creation.

There is no need to register a composition to protect your creative genius – when you write a score or record a home demo, copyright automatically steps in and gives you exclusive rights and protections. It does not matter if your song is the next number one hit or if you struggle to get your mum to listen to it:

If you created the music, Australian copyright law protects it. 

This protection comes in many different forms, giving copyright owners a number of exclusive rights to use and perform creative works, including the right to perform your music in public. Copyright law protects both the score and lyrics of a song meaning that Justin Vernon the writer and composer of ‘Skinny Love’, for example, has the exclusive right to perform his song in public.

Notwithstanding that this is unambiguously the state of the law in Australia, I found myself listening to this song being performed live by another artist. How is this possible? Do you need permission to cover a song live?

What Musicians Need To Know

For all musicians, copyright law is something that you need to be aware of and to understand.

Being aware of your personal rights as a musician is not only important to defend against unauthorised use of your own songs, but also to make sure that you do not unwittingly infringe the creative rights of another artist.

To perform a song in public, you must be granted a licence. Performing a cover without a music licence is a breach of Australian copyright law. 

The same principle applies to businesses who wish to play background music within a restaurant or shop. Without a licence, playing a song to the public is an infringement of the rights of the musician and copyright owner.

Obtaining A Music Licence

In Australia, a number of copyright collecting societies provide music licences and distribute royalties to the copyright owners.

For musicians looking to play gigs, the Australasian Performing Right Association (APRA) is the best place to start. Even if you are performing a free show or participating in a charity event hosting free live concerts you must still obtain a licence.

For businesses who wish to play background music, the Phonographic Performance Company of Australia (PPCA) provides a blanket licence that ensures your business complies with the law, however, it is also necessary to obtain a licence from APRA. Alternatively, you can seek permission from individual artists and copyright owners but this method can be onerous.

When Your Song Is Performed By Another Artist 

What happens when someone performs your song, or a substantial part of it, without your permission?

1. Seek advice on whether you have a solid claim for copyright infringement. The Australian Copyright Council has a free online legal advice service which can help you work this out.
2. If your work is being administered by a collecting society, such as APRA, notify your relevant body as soon as possible after you become aware of the possible infringement.
3. Contact the infringer. Let them know that you are the owner of the music and that they infringing your copyright by using your music without your permission and without paying for a licence.

You can do this with an informal email or an initial letter of demand that asks the performer to stop infringing your copyright without a relevant licence.

Before sending a letter of demand, or making any claims that someone has infringed your copyright, however, it is critical that you seek legal advice. If you send a threatening letter and the other musician has not actually infringed your copyright, this can be considered a groundless threat, meaning that the person you have accused of infringing your copyright can sue you for making an unsubstantiated threat of legal action.

4. If the above avenues are not successful, as a last resort, you may decide to take the matter to court. If you are successful, the court may order an injunction to stop the infringement of your copyright or make an order that a sum of money (damages) be paid to you.

At The End Of The Day

Copyright is a form of intellectual property.

The musicians behind the songs we know and love – the songs that move us, that make us feel and make our lives infinitely better – need to be protected, supported and credited by other artists, individuals and businesses. The only way artists can continue to enrich our lives is through greater respect, awareness and compliance with the moral and economic rights to their music.

How often do you perform covers as part of your set list? Have you considered the copyright implications? Let us know in the comments!

Further Information

Arts Law Centre – for more information on your rights as a musician and access to legal professionals specialising in copyright law.

To learn more about your rights as a musician visit:

• Music Rights Australia

To find safe and licenced content online visit:

• Digital Content Guide

For a list of legal digital music content providers in Australia and internationally visit:

• Pro Music

To get in touch with a legal professional specialising in entertainment law visit:

• Marque Lawyers (NSW)
• Creative Legal (WA and Vic)
• Studio Legal (Vic)
• Media Arts Lawyers (NSW and Vic)
• Shaun Miller Lawyers (Vic)
• Simpsons Lawyers (NSW)
• Sanicki Lawyers (Vic and Qld)
• McCormicks (Qld)

We are lucky to live in a country where copyright protection is automatically afforded to creative works, a saving grace that makes Australia’s copyright law imperfections almost palatable.

For musicians, the stakes can be high when it comes to copyright infringement. Contrary to what many Australians may think, there is no such thing as the innocent use of a song, nor is it a ‘victimless crime.’ Most artists derive much of their annual income from royalties, so when an individual or corporation uses a song without permission, without a music licence or without paying royalties, it deprives that artist of a reliable source of revenue.

For Australian musicians, if someone uses your song without your permission it is not only an infringement of your moral rights as a creator of that work but also your economic rights.

So, what are your legal options if you discover someone using your song without your knowledge or permission?

Copyright And The Music Industry

In any situation where your music is broadcast, performed or reproduced, you have a right to royalties.

Copyright protection is automatic in Australia as soon as your original song has been written or recorded.

There are three main situations where copyright infringement of your music can occur.

1. Where a song is used by another person, or corporation, without your permission and without paying a music licence.

As recently as last year, NSW Premier Mike Baird unwelcomely discovered that even politicians are not impervious to making copyright infringements.

Baird found himself in hot water over the unauthorised use of R.E.M’s song ‘Everybody Hurts’ in a YouTube take-off of Jimmy Kimmel’s Mean Tweets series. Baird made use of the track without seeking permission or paying a music licence. YouTube removed the clip after Warner Chappell, the band’s publisher, made a copyright claim overnight.

2. Where another musician uses a substantial part of your song without your knowledge or permission and without paying for a music licence.

For example, by using a substantially similar melody, key, beat, harmony or song structure.

In 2010, Men at Work songwriters Colin Hay and Ron Strykert were involved in a high-profile, expensive and drawn out case over the similarities between their famous song ‘Land Down Under’ and the flute line in the children’s song ‘Kookaburra Sits in the Old Gum Tree.’ The Federal Court’s decision in favour of Larrikin Music (the copyright owners of ‘Kookaburra’) reinforced that musicians can be liable for plagiarising a substantial part of another musician’s work without approval.

3. Where another musician samples part of your song without your permission and without paying a music licence.

Vanilla Ice became the centre of a copyright infringement claim for sampling Queen & David Bowie’s ‘Under Pressure’ in his hit song ‘Ice Ice Baby’ without consent and without a music licence.

The case was settled out of court as it was clear that Vanilla Ice had merely altered the rhythm of the baseline in an effort to avoid giving credit, paying royalties, seeking permission and a music licence.

A Run-Down Of Your Rights

As a musician, you have three main rights:

1. Reproduction

This allows you to reproduce the music you have created in any format.

2. Performance and communication

This right is exercised whenever your music is broadcast on TV or radio, when you perform a song live or distribute your music on the internet.

3. Adaptation

This protects your status as the sole person who can create derivative works, such as music sampling, unless another person has your permission or a licence to do so.

As a creator of music, you not only possess copyright ownership of the music itself but also in the lyrics and any sound recording of your music.

You also own moral rights to your music, including the right to have your work attributed to you by name, the right to stop anyone else attributing your work to them and the right to protect your music from being used in a way that hurts or damages your reputation.

As An Artist, What Does This Mean For You?

If you discover that someone is using your musical work without your permission, you have the right to seek recompense.

Here’s what you can do to stick it to the infringer:

• Firstly, identify who used your song without your permission.

If it is a small team of indie filmmakers or school students making a project for their media class, it may be wise to let it go and take a ‘give-a-little get-a-little’ approach.

On the other hand, if it is a large corporation or mainstream media outlet who is profiting from your blood, sweat, and tears without a licence and without paying you the royalties to which you are entitled, it may be worthwhile taking things further and seek a legal remedy.

You may wish to seek an injunction, which prevents any further unauthorised use of your music, or damages as compensation for the loss you have suffered as a result of the infringement. In either of these scenarios, you will need to pursue legal advice from a lawyer who specialises in entertainment or copyright law.

They will advise you on your rights, whether your claim is worth pursuing, the best course of action based on your circumstances and possible remedies you may be awarded based on the loss you have suffered.

• Secondly, ascertain how much of your song has been used.

Copyright is infringed only where a substantial part of your copyrighted music is used without your permission, and where this infringement is not covered by any of the fair dealing exceptions.

The Copyright Act balances your rights as the copyright owner with the general public allowing the general public to use a substantial part of copyright material without first seeking your approval. This only applies for certain approved purposes called ‘fair dealing’ defences.

This means that if someone uses your music for any of the below purposes, then they have a defence to your copyright claim:

• research or study
• criticism or review
• reporting news
• giving professional legal advice; and
• parody or satire

If the copyright infringement does not fall within any of the above purposes, it is important to contact the person whom you believe has infringed your copyright as soon as possible after you become aware of the infringement.

• Thirdly, you may wish to send an initial letter of demand.

Your letter should make that person aware that you own exclusive rights to your music, that they have infringed your rights, and how you would like the situation resolved. You should also include a date that you would like to receive a response by, and that you have the right to commence legal proceedings if an adequate response is not received within that timeframe.

Before sending your letter, it is not only important that you consult a legal professional, but also that you consider the outcome you would like to achieve.

For example, would you like the person who has infringed your copyright to:

Simply stop using your music? This is a simple request if your music is being used on a website, for example, as it can be removed quickly.

Continue using your music, but to pay a licence fee?

Pay compensation to you for the loss you have incurred as a result of the unauthorised use of your music?

The Arts Law Centre of Australia has a downloadable template of a letter of demand.

Groundless Threats

Before sending a letter of demand, or making any claims that someone has infringed your copyright, it is critical that you seek legal advice.

If you send a threatening letter and the person has not actually infringed your copyright, this can be considered a groundless threat. This means that the person you have accused of infringing your copyright can turn around and sue you for making an unsubstantiated threat of legal action.

What Can I Do To Protect My Music In The Future?

As a first step, you can set up a Google Alert to receive daily inbox alerts whenever your music is being mentioned or used on the internet. This will help you to keep track of who is using your music, when it is happening and where it is happening without your consent.

To protect economic rights to your music, you can register with a collecting society.

These bodies oversee payment of royalties, look after your copyright and grant permission for others to use your songs (either by performing them or recording them) if they pay a fee.

Australia has a few main collecting societies:

• Australasian Performing Rights Association (APRA) which covers situations where another artist wishes to play your songs live.
• Australasian Mechanical Copyright Owners Society (AMCOS) which covers instances where someone wishes to make their own recording of your song.
• Phonographic Performance Company of Australia (PPCA) or the Australian Record Industry Association (ARIA) which covers sound recordings.

You may also wish to consider getting an International Standard Recording Code (ISRC). This is the international identification system for sound recordings and music video recordings which provide a method to automatically identify recordings for royalty payments. In Australia, this is administered by ARIA.

Conclusion

The area of copyright law can be a minefield at the best of times.

For musicians, the first step to protecting your rights is understanding them. Knowing what your options are if you believe they have been infringed by an individual or corporation, and when to seek legal advice, is the best way to secure a favourable outcome.

Bear in mind that there are time limits for commencing legal proceedings in copyright cases, so it is important to see a lawyer as quickly as possible if you suspect your copyright has been infringed.

Further Information

Arts Law Centre – for more information on your rights as a musician and access to legal professionals specialising in copyright law.

To learn more about your rights as a musician visit:

• Music Rights Australia

To find safe and licenced content online visit:

• Digital Content Guide

For a list of legal digital music content providers in Australia and internationally visit:

• Pro Music

To get in touch with a legal professional specialising in entertainment law visit:

• Marque Lawyers (NSW)
• Creative Legal (WA and Vic)
• Studio Legal (Vic)
• Media Arts Lawyers (NSW and Vic)
• Shaun Miller Lawyers (Vic)
• Simpsons Lawyers (NSW)
• Sanicki Lawyers (Vic and Qld)
• McCormicks (Qld)