'Wa Tay Snow! Wa Tay Snow! Wa Tay Snow!

A Cebuano songwriter proposed to release a song called 'Wa Tay Snow'.

Imagine this: lyrics written in Cebuano describing the Filipinos' delusion to white Christmas sung to the tune of 'Let It Snow! Let It Snow! Let It Snow!'. It's not only brilliant, it's also comical and an eye-opener. 'Wa Tay Snow' means we do not have snow. The context of the lyrics will tell you of almost every Filipino's obsession to the western practices of Christmas.

I would hear foreigners saying how weird it is to see Christmas trees, mock snow, and all the winter-like decors in December inside the hotels and malls in the Philippines when it's oven hot outside. Imagine that. It's not only funny, but stupid - snow, Christmas tree, Santa Claus, reindeers, and so on. We are trying to be what we are not and I think it's a shameful culture.

And so when I heard the demo, I immediately saw the potential. And I'm sure a lot of people, although they may not admit it, can very much relate to the Filipinos' stupidity of embracing the western practices of Christmas.

But I advised the songwriter to hold the release of the song while I work on the adaptation license to record it. 'Let It Snow! Let It Snow! Let It Snow!' is originally written by Jule Styne and Sammy Cahn under Cahn Music Publishing Co. (ASCAP). After a few more research work, I ended communicating to Warner Music NY and because the Philippines is in Asia, they forwarded me to their Asian head office in Malaysia. This was a year ago. We had a long email discussion and they charged me PhP25,000 to record and use the song.

I think it's a reasonable rate. However, if we are to invest on the license, it has to be recouped somehow and so I asked what percentage of ownership should they share with us on the new musical work. This is their reply (name of the respondent removed):

Hi Ian,

The Cebuano lyric is included in composition. Which mean the original composer & original lyricist will be remain by their own share. (Publishing rights)

Regarding the recording rights, it depend the future new cover artist intend to use which recording version, or their also can do their own recording without pay for recording rights.

Best Regards,

XXX

I'm not sure if I understood this accurately but nothing happened and Christmas 2012 eventually ended.

This year, I decided to revisit the project and as I was advised, Universal Records turned out to be the copyright administrator of 'Let It Snow' in the Philippines. I managed to contact them. In our email conversation, they again included Warner Music Asia in the thread. This time they charged me USD20,000 (USD not PHP) and after a very long discussion and attempts to persuade on the ownership issue, this is their final response (name of the respondent removed).


Hi Ian,

Please understand that the rule for adaptation is that you can change the lyrics with prior permission and approval of the owner but that should not diminish or lessen the rights and or the ownership of the intellectual property owner over the song or the musical work, thus owning 100% still to the owner.

In the same way that it doesn't follow that if you create a new lyrics to an existing song, then you already own 50% of the right over the original song because of your creation of the new lyrics. That wouldn't be a fair to the original intellectual property owner.

Hope that above clarifies why we have to charge 100% rights over the song you wish to adapt and cover. In addition, every new version by any performer / interpreter shall be subject to new license and payment.

Note that any adaptation without proper consent by the original owner is subject to legal implications.

Please confirm if you will pursue usage of the song. Thank you.


Best regards,
XXX


Sad.

Though I understand and respect this so-called standard practice, the principle that it promotes actually impedes creative options.

Creative work is made when artists bend rules, not break them. The copyright law on the other hand is authored to protect these creative works. I believe adaptations can be considered new creative works too. If the Batman story is franchised for a movie, I'm sure the franchisee would never invest on the license if he cannot own the rights to the new story. How is that any different to a musical adaptation?

Had they ever heard of the term Creative Commons? It's a similar idea except that it's non-profit.

I wish there was a way to negotiate on the terms with the original publisher for us to release 'Wa Tay Snow'. Apparently, the standard practice permits none. It is sad to note that it is by this practice why the record companies are downsizing globally. I'm simply requesting for a different license to a different story of an existing melody. A unique license in fact because after all, copyright law is supposed to be territorial. The irony is that the music industry, being a key player in the creative industry, turns out to be a close minded institution.

I didn't pursue the license.

Sad.

Update from Cebu's Music Sector

Nov. 12, 2012 marks a milestone for Cebu's music industry moving forward as FILSCAP constituted ARTIST KO as its exclusive music licensing agent for Metro Cebu on public performance of musical works.

On the same day, the first FILSCAP MOA for public performance of musical works was signed by PRA-Cebu Chapter in Laguna Express, Oakridge Business Center, Mandaue City at 2PM. The signing was attended by Mr. Jun Yap (President, PRA-C), Mr. Noel Cabangon (President, FILSCAP), Ms. Cristina Soqueno (Licensing Manager, FILSCAP), PRA-C officers Jonathan Ho (Mandaue Foam), Maricar Sacro (Ng Khai), Robert Go (Prince Warehouse), Jay Aldeguer (Islands Souvenirs), and yours truly.

L-R : Robert Go (PRA-C Member), Ian Zafra (Artist Ko, FILSCAP Licensing Agent),, Mr. Noel Cabangon (President, FILSCAP), Mr. Jun Yap (President, PRA-C), Jonathan Ho (PRA-C), Maricar Sacro (PRA-C), Cristina Soqueno (Licensing Manager, FILSCAP)

The Filipino Society of Composers, Authors and Publishers, Inc. (FILSCAP) represents the rights of songwriters and publishers covering an extensive worldwide repertoire of copyrighted local and foreign musical works. FILSCAP’s role is to grant permission to music users and provide compensation or royalties to composers, authors and publishers for the use of their works.

Moving forward.

FILSCAP comes to Cebu for "Music In Your Business" forum

Finally here it is.

The Filipino Society of Composers, Authors and Publishers, Inc. (FILSCAP) in cooperation with the Department of Trade and Industry (DTI)-Cebu Provincial Office, will be holding a forum  dubbed as "Music In Your Business" happening this Friday, Oct. 28, 2011 starting 8AM until 12noon at the Marriott Hotel.

FILSCAP President Noel Cabangon
(photo taken from Facebook)

Topics include:

Music Copyright
Speaker : ACCRA Lawyer / Ateneo Law Professor Atty. Antonio Ray Ortiguera
A discussion on the rights of music copyright owners over the use of their works and the licenses that should be secured by business owners who intend to use copyrighted music in their business or events.

Copyright Societies
Speaker : CISAC Regional Director for Asia-Pacific Mr. KT Ang
This topic covers the collective management of copyright by copyright societies.

Licensing Operations of FILSCAP
Speaker : FILSCAP General Manager Debra Ann P. Gaite
FILSCAP shall talk about how they license, collect and distribute royalties from public performances of copyrighted musical works.

Social Value of Music
Speaker : FILSCAP Trustee/Socio-Cultural Committee Member/Composer Gary Granada
A topic that defines the socio-cultural value of playing music to the public in events or establishments.

"Music In Your Business" is in partnership with the International Confederation of Societies of Authors and Composers (CISAC), Artists and Musicians Marketing Cooperative (ARTIST KO), and the Creative Cebu Council, Inc.

In the evening will be a solidarity meetup for the local songwriters at The Outpost. It's going to be fun.

Talk Music Talk : Music Publishing

I'll be doing a music talk about music publishing.  If you're interested, RSVP me in Facebook or meet me in Artist Ko gigs.  It's free but the facility is small hence seats are limited only.  Maybe between 10 and 15 persons only.  So I'm doing this one session at a time.

Venue's at the UP CebuinIT TBI facility (see map below).

Tapping music in the IT industry

Since the conception of Artist Ko, I already had the intention of tapping into the IT industry for digital music distribution.  In the process of doing, I had developed an idea on how it should happen and vividly it unfolded itself as months passed.

At first it was just a vision... then this opportunity came.

Recently I attended 2 meetups on Tech Talk and there I met Glenda Arreza, the managing director of UP Cebu-DOST TBI Program.  I was 15 minutes early, sat beside her (I didn't know who she was until we started talking), and after awhile, I realized that she's the political support I was looking for.

TBI stands for Technology Business Incubator.  And the program aims to nurture technology-based start-ups by giving them the knowledge and skills to succeed.  I mentioned that I have one.  Divine intervention perhaps?

So the day after, my business partner and I went to her office and discussed more about this project idea. She gave us the application requirements. We exchanged emails. The TBI steering committee requested additional information and asked for clarifications.  Three days later, our business proposal got approved.

Today is our kick-off date.  My partner and I will be attending free seminars to make this business idea work.  We'll also enjoy a one-on-one consultation with experienced entrepreneurs.

My vision is slowly shaping up. This will be an exciting time for the music scene.

What is a copyright infringement?

Protest forums and blogs had been built page after page. It was on the national TV news. The majority of music fans were disappointed. But whatever criticisms made by the public, the song went on to reap its success. Now that it’s not a major buzz anymore, I decided to take a stand on this issue.

Orange and Lemons (photo source: http://fr.babelsound.com/orange-and-lemons)

Despite the prevailing issues that circulated among new wave fans on the claim that the hit single “Pinoy Ako”, the Pinoy Big Brother soundtrack by Orange And Lemons is an obvious “copy” of “Chandelier” by The Care, the fact remains that it soared the charts and became a huge phenomenal hit in the Philippines.

First off, I’d like to point out that this is in no way defending ONL between those who initiated the dispute. The general question I’d like to raise here is if it was an infringement? In my attempt to base my points of view on facts instead of subscribing to some envious new wave group’s criticisms, I am writing this article in the hope of explaining on the context of copyright infringement.

Copyright infringement is when a copyrighted work is being performed, broadcasted in public, uploaded for online distribution without authorization from its owner and with no fees paid as required by law.

For any lawyer or other rightful entity to prove that there is infringement, there must be a substantial evidence to prove that the songwriter supposedly guilty of infringement had access to the original copyrighted work being made. This is the first basis.

To cite an example, a political candidate running for a position in the government in May 2007 used Insoy Niñal’s song “Prinsipal” as an official election campaign jingle. The Cebuano composer confided that there was no permission initiated. What made it worse was that the lyrics were altered to fit the candidate’s campaign platform.

By definition, this is a clear case of infringement and the political candidate and his campaign representatives are guilty. In this incident, there are actually two unlawful act made. The unauthorized use of the song for an election campaign is one. Then there’s the underlying issue of the misrepresentation of the copyrighted material because when Insoy wrote “Prinsipal”, it was not intended for political use.

Insoy Niñal
Photo by Archie Uy (Tumblr.com)

The other unauthorized use is the alteration of the lyrics. The music law protects both the music and the lyrics and therefore any alteration of either or both components of a song, if not granted by its owners, is a copyright infringement.

Call it a rip-off if you may as that’s what everybody thinks. But I believe the issue was and still is an opinion of the masses. Ergo, it’s neither right or wrong.

Misrepresentation is a huge issue and in fact, when songs are made as commercial jingles, ad agencies convince publishers and songwriters by offering to pay a hefty sum of money.  Or at least they used to.  This being the usual and logically the appropriate approach, is the price the advertisers have to practically pay to the copyright owners understanding that both parties know that the song in question is valuable to the product being promoted.

The second type of infringement is the unauthorized use of substantial portions of a copyrighted work. Earlier, I cited “Pinoy Ako” being once the favorite subject of scrutiny and criticism among new wave fans debating that the hit song is identical to that pre-existing European track.

As I attempt to explain infringement and the application it served to this dispute, it is of my interest to present examples of situations in the hope of displaying a comprehensive perspective of this issue.

Another note is that the songs were managed by different record companies.

“Pinoy Ako” vs “Chandelier”

The copyright law was conceived to protect the songwriters and music publisher’s rights to a song but not to judge who owns what. No matter how solid and obvious the claim is as in the case of the dispute between “Pinoy Ako” and “Chandelier”, the only way to prove that both songs are the same or identical is to present each of the song’s music sheets in court.

The second proof of evidence is to present music sheets, a certified proof of evidence. that there was an infringement or that the European song was copied. Another solid proof of evidence is if there is proof of access to the copyrighted work (as I mentioned earlier). Even if the issue caught the national media’s attention and no matter how massive the protest of this issue was among new wave fanatics, the last word on the judgment of copyright infringement still lies in court.

Copyright, though it may sound simple in theory can be complicated when applied to actual situations. Many gray areas arise and this becomes a venue to manipulate the facts and evidences. In court it’s not what you know but what your lawyer can do with what you know to win a case.

To conclude, of both types of infringement and their respective examples that I presented here, the political candidate is, without any doubt and stating the obvious, is guilty of infringement. In the second case, the “Pinoy Ako” issue that raised national attention is still but a public opinion and unless a music sheet and a substantial proof of evidence that access to “Chandelier” is presented confidently in court, there is probably no infringement made.

Music licensing at Indiepinoy.com

The sender agreed to have this email published verbatim on the condition that her band, real names of people, and email addresses will not be disclosed. All for the spirit of sharing. Read on.


from: ****** Band <******@gmail.com>
to (**********@gmail.com
date Fri, Mar 13, 2009 at 11:46 PM
subject Win-Win Strategy, does this one work?
mailed-by gmail.com


Maayong gabii, Ian.

Hope this won't take so much of your time. Attached is a copy of the email the manager had sent... Ako untang ipatan-aw if this one is safe as it sounds, and advantageous at the same time. from earning of the downloads, as B**M**** had said, "It's a win-win strategy".

If there is something about the terms [this is not the contract, yet... daw], do please reply at *******@rock.com.

thanks, again. bai


all the best,
*******

*********************

Hello!

I would encourage you to do check out indiepinoy.com. This is a bigger project that will definitely help you promote your music and market them thru the mobile networks. When interested please send email to indiepinoy include the following:

1. A profile that will include your location, music genre and site links
2. Track listing of EPs, albums please indicate if released or unreleased, if distributed under a label or not.

Note: You can include in the list songs you are about to record since we will be asking for the actual audio files after your band has been presented to the telcos and have been approved. I can always tell them that these audio files will follow soon.

3. Contact details (email and phone number).

The purpose of these information is to present your band to the companies involved in the project. Upon approval, then we will be sending to you the guidelines on what to do including details on the deal.. We will be signing up a contract on this project as it involves licenses. We will only be handling mobile rights. You still will have the liberty to get into any major label deal as long as there are no conflicts on mobile rights. Please note that we do not involve in internet downloads. Everything is mobile and legitimate. You will get revenue share from your songs, a monthly report will be in order.

You can submit your songs already even without the contract yet. Technicians at mymusic can process them immediately to avoid the clutter of work when all the bands has been approved by the telcos. Note that we cannot market your songs without a license contract as this is stated by law. That is for your protection too.

Re your question on revenue share:

The specific figures for revenue share is yet to be finalized. The current status of the project now is that indiepinoy has to submit to the telcos (globe and smart) a list of songs involved in the project. These telcos will not be interested if we have only a few songs to market. In my opinion, just like any business they want to make profit from the project. THat is why I will be submitting more than 1,000 list of songs (not the actula audio files) so that we can get a better deal in the revenue share. Commonly each song is sold at P50 / mobile download (for fulltrack). This is for premier songs under major labels. Other category has a slightly different rate. 50% of these goes to the telcos. And from that the other 50% will be shared be mymusic/indiepinoy and the band. If you can compare the profit rate from royalty on a CD under a major label, indiepinoy still has a bigger figure per song.

If your band will be included in the full promotion, we will require you to alot a song that will be pushed free for download (meaning you will not earn from the downloads of that song for a specific period of time). This is so we can promote the band and the project in full. Promotion involves big expenses in various media.

I hope this clarifies your questions.. If you have any more questions, dont fail to email indiepinoy at indiepinoy@gmail.com

Thanks a lot.


My reply

from Ian Zafra <***********@gmail.com>
to ******* Band <*******@gmail.com>
date Sat, Mar 14, 2009 at 12:12 AM
subject Re: Win-Win Strategy, does this one work?
mailed-by gmail.com


Hello *******,

We may have different preferences and ways in assessing what is worth trying and what is not. Indiepinoy sounds promising and from the looks of it, I would like to believe that this project is run by people, probably musicians themselves with a very strong entrepreneurial spirit. I have so much respect for people like that.

From what I understand, Indiepinoy is a mobile phone content provider. There are actually many of them today but this may be worth a try. Yet if you are doubtful, try listing down the concerns that bother you. My guess is that you're probably looking for a sample of their sales report or at least a template of how it's going to look like and whether or not you can access them yourself. Ask them about it. For all you know, Indiepinoy probably need challenging questions like that especially from unsigned bands. From there maybe you can take your foot one step forward until you get closer to a decision.

Take some time to understand how it works inside out. Make haste slowly. Before I decided on TuneCore, I took a great deal of time reading the FAQ section.

At the end of the day, what really matters is your decision as mine would only be recommendatory. I'm not sure if I'm helping ******* in any way yet I must say your best defense is to learn more about IP and its applications. You can start by reading here


P.S. I hope you won't mind if I blog this... do let me know



She replied

from ****** Band <******@gmail.com>
to Ian Zafra <***********@gmail.com>
date Sun, Mar 15, 2009 at 12:46 PM
subject Re: Win-Win Strategy, does this one work?
mailed-by gmail.com


Thanks for replying back.

I will think over the things you've suggested, and I'll be happy to open this topic with the ladies.
Salamat kaayo, bai.


*********


Blogging: If it helps other people, why not? The more encouragement --the better. However, okay ra if [uber] iscreet lang ang name sa *******? Address the general, yes. B-)

Thanks, again [kaayo], Ian Z.