Do Due Diligence

29 01 2010

Do your due diligence or you may never end up on the big stage.

Due diligence is a phrase that is thrown around the legal world on a daily basis.  “Is that borrower credit worthy?  We’ll have to do our due diligence.”  “Do we want to purchase that gas station?  We will only know after we complete our due diligence.”  Does the concept of completing due diligence in the music world ever come into play?

The answer is that it should.  Just like a business looking to buy out its competitor or a bank trying to figure out if it should issue a credit line to a borrower, a musician should always complete due diligence before making any decision related to his career.

In my quest to get musicians treat their music like a business, I have often compared a music career to any other type of business.  However, even though being a musician is similar to being a manufacturer of tires or a having a shoe store, there are different rules and procedures in the music industry.  These different rules and standards are due partially because of the slick talkers and stereotypical music industry professionals but mostly from a successful system that has been in place for decades.  If it ain’t broke, don’t fix it has been the mantra of the major label music industry for years.  In this system, the typical scenario played out as follows:  a musician breaks onto the scene or discovered by an A&R rep, the musician blindly signs a multi-album record deal, a manager is provided by the label and the label would control the musicians career for the length of the contract and beyond.  As we all know, this system is no longer the norm.  Due to the failures of the record industry over the last several years, the system has changed and the process for building a career as a musician has changed along with it.

While a musician was happy to sign the first contract that came from a “reputable” label in the past, that musician now has the ability to conduct her own due diligence.   For a musician his or her music is her work product.  Today, when that work product gets to a level where it is ready to share with the public and the public wants to hear it, several doors may open for the musician.  Behind every door, however, is another business who wants to make money off of the musician’s work product.  A manager, business manager, lawyer, label, publicist, publishing company, etc. etc. are all examples of businesses who make money off of your work product.  But just like a business owner who is looking to hire a new CEO, a musician must conduct diligence before making a long term committment which may direct the musicians career and check book for the next several years.

So what should you look for as a musician who is looking to sign with a third party (a label, producer, manager, etc.)?  How does a musician conduct his own due diligence?  First, conduct your own research:  google the hell out of the company or individual that is looking to work with you; talk to people in the industry to see what their experience has been with that company or individual; and spend a lot of time talking and observing what that individual or company is really like to work with.  A label might have a good reputation, but that reputation could have been built on a success 10 years ago; what have they done lately?  Ask for a specific plan for you and your band.  How will the label help you get tours?  How will the manager deal with finances?  How will the lawyer bill you?  We know that Sub-Pop has been successful with many of thier artists, but how do their contracts work?  Will they enter into a license deal or maybe they are only a 360 deal label?  Just because a label or management company has a good name doesn’t mean that they are a good fit for you.

It is always exciting to have someone interested in working with you and in some cases offer you money to work for them.  But in today’s music world, you have to ask: is it worth it?  Maybe you can do it on your own.  Maybe you make your own start and then go with a label.  Maybe your best friend is ok to work as your manager for a regional tour.  All of these things must be thought about before signing on the dotted line. In the business world if one business is looking at buying out another business, the due diligence period may take months (years even).  Lawyer pour over the existing contracts, the amount of money coming in and out of the company, the people working at the company, the systems in place that are working or need to be fixed.  Why should your music career be any different?

Musicians should focus on music.  That is what they are inherently good at and why they have the exciting prospect of people paying them for what they create.  However, saying that “I only want to make music” and ingorning the decisions that effect your career as a musician can have devastating results.  Do your due diligence before you make decisions that will effect your ability to continue to make music for a living.  Once you have made smart decisions on who makes up your professional team, you can go back to what you are truly meant to be doing:  making music.





Senate to Discuss Section 181 Extension

17 01 2010

The Senate is set to get back to work on Tuesday, January 19, 2010.  After the MLK holiday, the Senate Finance Committee, based on its press release and the staffers’ opinion, the Tax Extender Bill will be debated.  Of ultimate importance to film makers, the proposed extension of Section 181 is one of the extensions contained within the Bill.

It is unclear what portions of the Bill or if the whole Bill will be adopted, debated, amended, etc.  We all must continue to have the patience we have had for the last several months while our government “springs” into action.

As always, stay tuned.  I’ll try to post as soon as I hear one way or the other.





L4M ANNOUNCES 2010 SXSW SHOWCASE

4 01 2010

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We are proud to announce that L4M  will be hosting its second annual independent artist showcase at South by Southwest.  Click Here for more details on how you and/or your band could be part of the showcase.  Thanks to L4M, Stahl Cowen and our sponsors, the event is going to be bigger and better than last year.

Stay tuned for more details and profiles of the musicians already signed up to perform.

Thanks,

Josh, Brian and Eric a/k/a L4M





Section 181 Renewal On Hold (Temporarily)

27 12 2009

Thanks to my readers and an exhaustive search of government web sites, it appears that the time frame for passing the Tax Extender Act of 2009 has been…extended.  The United States Senate Committee on Finance issued this statement on December 22, 2009:  CLICK HERE.

Thanks in large part to the extensive health care reform debate, this important piece of legislation, which contains a one year extension of Section 181, will have to wait until 2010 for a Senate vote.  The statement indicates that the Senate hopes to have a “seamless extension” for important tax benefits.  So, while we cannot quite exhale yet, it is a bit of a relief to know that the Senate is still planning on picking up where the House of Representatives left off.  It is not clear if there will be any gap in coverage for qualified films, but the indication from this statement is that there will not be any issues for films which have not or will not begin production in 2009.

As always, stay tuned…

Special thanks to Joe Gold for the heads up.  http://www.goldcapfilms.com/





Extension of Section 181 Passes House!

10 12 2009

The Tax Extender Act of 2009 passed a vote of the House of Representatives yesterday.  Buried in the tax extension legislation is the renewal for one year of Section 181.  The official text is as follows:

Section 117 SPECIAL EXPENSING RULES FOR CERTAIN FILM AND TELEVISION PRODUCTIONS.

(a) In General – Subsection (f) of section 181 is amended by strking ‘December 31, 2009′ and inserting ‘December 31, 2010′.

(b) Effective Date- The amendment made by this section shall apply to productions commencing after December 31, 2009.

Representative Diane E. Watson is taking credit for introducing the bill under her proposed H.R. 3931.  Read her press release here. Regardless of who is responsible, the noose just got considerably looser for those film makers trying to attract investors to put money in their films which were not ready for production in 2009.  Similar to last year, this 11th hour extension looks like the much needed amnesty for many film makers.

Please continue to check in to see the progress of the Extender Act through the Senate and the White House.  While it is not law yet, we are definitely getting there.





A New Type of 360 Deal or Old School Meets New School.

5 12 2009

Old School Meets New School (sort of)

Recently I was asked to write an article about anything currently happening in the new music industry.  Not really an exciting proposition for most, but for me, my heart went a flutter.  Should I write about fair use, the death of the CD (again), the exploitation of copyrights (again) or current trends in the indie scene?  I decided to write about something that is current and personal to me and my clients.  A new model (which is not so new) for a band/label contract.

Using a combination of the current 360 deals and traditional investments into start-up companies, a fair, equitable and potentially lucrative partnership can be formed.  Realizing that the industry is not what it used to be and that the old model is “old” for a reason, there is a potential to do something new that will benefit the artist as much as the investor or label.

The playing field has leveled to a certain degree.  If a band has done much of the hard work to start out and has a competent management team and lawyer on its side, the need for the old school label is not as necessary as it once was.  Using the same model that many start-up companies use, a band can attract investors and forge a partnership that will allow the band to reach new heights and the investor to realize attractive financial returns.

Please check out my article by clicking here.  Also, please support my friends at the new NYU School of Law IP and Entertainment Ledger by adding their publication to your bookmarks or favorites.

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Section 181 Extension Bills Are Here: HR 2720/3931!

25 11 2009

As predicted, Section 181 is back on the front burner now that the House passed a Health Care reform bill. HR 3931 and HR 2720 have made their way from introduction to Congress as Bills to the House Ways and Means Committee. 

HR 3931 seeks to extend 181 until the end of 2011.  HR 2720 goes well beyond a 2 year extension and looks to make 181 a permanent tax incentive  for qualified films. 

Obviously the Bills will have to move swiftly to make it to a vote before the end of the year, but this is great news for those film makers who were not quite ready to start a production in 2009. 

HR 2720 is simple and straight forward (not part of a large extender Bill (yet)).  Here is the text:

A BILL

To amend the Internal Revenue Code of 1986 to make permanent the election to treat the cost of qualified film and television productions as an expense which is not chargeable to capital account.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. EXPENSING OF QUALIFIED FILM AND TELEVISION PRODUCTION COSTS MADE PERMANENT.

Section 181 of the Internal Revenue Code of 1986 (relating to treatment of certain qualified film and television productions) is amended by striking subsection (f).

HR 3931 is also quite straight forward:

A BILL

To amend the Internal Revenue Code of 1986 to extend for 2 years the election to treat the cost of a qualified film or television production as an expense which is not chargeable to a capital account.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. EXTENSION OF TREATMENT OF CERTAIN QUALIFIED FILM AND TELEVISION PRODUCTIONS.

(a) In General- Subsection (f) of section 181 of the Internal Revenue Code of 1986 is amended by striking ‘December 31, 2009’ and inserting ‘December 31, 2011’.

(b) Effective Date- The amendment made by this section shall apply to qualified film and television productions commencing after December 31, 2009.

Follow the success (hopefully) of the Bill here and on http://www.govtrack.us/congress/bill.xpd?bill=h111-2720 and http://www.govtrack.us/congress/bill.xpd?bill=h111-3931

Music readers, this bill applies to you.  Money spent on a qualified music video (even internet productions) can qualify for the tax incentive under 181.  Search my site for other articles about Section 181. 





How to Grandfather Under Section 181

20 11 2009

 

Better start filming!

 

 

 

As the deadline for Section 181 quickly approaches, I have received a bunch of questions related to “grandfathering”.  The statute itself does not provide a bright line answer, so I went to the source, the IRS.

According to one of the authors of the film incentive, in order to grandfather under Section 181 and have your film qualify even if you do not complete it until next year, you simply need one true day of principal photography.  One full day with a director, lighting, cast, etc. should do the trick.  If you have that one day and your film qualifies under the other requirements of 181, you will still be able to utilize the incentive.

This is great news for those film makers out there that are just about ready to start shooting and have not quite completed their money raise for a film.  If the incentive is not renewed (it is set to expire at the end of this year), a film that qualifies in 2009, will still be able to offer the incentive to investors who invest in 2010.

In other 181 news, it appears that the section may have found its way onto a couple of extender bills.  According to the IRS, there may be a couple of bills out there that include an extension f the incentive; one for 2 years and one which would make it permanent.  Again, this is just speculation, but rumors in Washington D.C. sometimes come true.

I have begun to work with film makers on their private placement offerings or addendum to their offerings to include an opinion on this grandfathering issue.  If you are interested, please feel free to contact me at jkaplan@stahlcowen.com.

*As with all my posts, this post is for information purposes only and does not constitute legal advice.  I am not your lawyer and you may not rely on the content of this website as though I am your lawyer.





Section 181 Back on Track???

12 11 2009

Only time for a quick update folks.  Now that the Health Care proposal is out of the House and on its way to the Senate, the tax folks have more time (although not that much more time) to focus on tax incentives and credits that are set to expire at the end of this year.  For our purposes Sections 181 and 199 are really the only one matter.

According to a staff tax attorney at the Ways and Means Committee, the focus has been shifted and if Section 181 has a chance of renewal or extension, it will occur in the next two weeks.  Please note that even if the renewal of Section 181 is proposed in the next week, there is no guaranty that the bill which carries the renewal proposal will pass.  To that point, you will not see a renewal of Section 181 in a proposal by itself.  Any renewal of the film incentive statute will be included on a larger and broader “Extender” package introduced to Congress before the end of the year.

So, I suppose this is good news.  However, if you can get started on your films, do it now or forever hold your peace!

 





CMJ Recap and Proof of Change

1 11 2009
french_horn_rebellion_01

French Horn Rebellion Ripped it Up at CMJ 09

I’m finally fully recovered from my week in NYC.  While many of the topics discussed by panels at CMJ this year were slightly on the negative side (not too surprising when your industry is in constant flux), there was an air of renewed hope and positivity that musicians and those who are dependent on music to make a living may be turning the corner.

Huge issues, such as how to compensate musicians who have content ripped off or used without permission on Goliath’s like You Tube, do not seem to be any closer to being resolved.  One lawyer from a large internet file sharing site expressed her frustration that it took her client 8 years to work out a comprehensive license deal with the labels.  The labels countered that with a complaint that the country’s Anti-Trust laws prohibit the labels from meeting in the same room let alone coming up with a unilateral price for licensing music and come up with a fair price for licensing; music.  The result will be years of musicians losing out on mechanicals and licensing revenue.

But, like I said, the weekend was not without some optimism.  Focus groups discussed new ways for musicians to make money and reach their fan groups.  Several of the methods they discussed were ideas that this site previously discussed (Click Here and Here).  Using new and creative ways to get your music to your fan base (USB drives, t-shirts, treasure hunts) and utilizing social media were stressed by those in the know.  Creating an interactive experience with the buyer should be the ultimate goal of musicians.  With all of the utilities currently available, the one on one fan/artist experience is easier to achieve.

The byproduct of the new methods of reaching and interacting with fans is the steady decline of the traditional album (Something I mentioned in last week’s post:  See White Chocolate and the Soul Berries).  Rolling Stone is picking up on this trend as it is reaching beyond the indies and making headway with some major artists.  In Issue 1090, October 29, 2009, David Browne cited to the death of the traditional album in his article entitled “Artists Break Free of the Album”.  In the article, several artists, including Billy Corgan, Modest Mouse, Sppon, Blitzen Trapper and Radiohead, are testifying to the need and the appeal of a new model for getting music to the masses.  Finally catching up to the public trend (or disease, depending on how you feel) of severe Attention Deficit Disorder, the music industry is coming to the realization that if you are going to get new music out and grab the public’s attention, you better do it quickly and in a new and interesting way.  EP’s are becoming the new LP’s and on-line releases, once deemed leaks, are becoming a cheaper and easier way to reach the entire world and not just the big box store customer. 

The industry insiders and taste makers at CMJ were not necessarily revealing any new or earth shattering information that the informed musician did not already know.  Yet, it is important to realize the significance of the simple fact that these industry and label types are finally catching on to the truth.  If you really needed proof that the industry is not what it once used to be and the old model of releasing a cd, touring, sitting back and living off of royalties is dead, then hearing it from a label owner, label lawyer and label A&R executive is all you hopefully ever need.

blog-deficit-disorder-badd

Did A.D.D. kill the LP?