Welcome back to my multiple part series on how to make money as a musician: Volume 2, Licensing.
No point dwelling on the past, making money selling records has gone the way of the 8 track, the ferbie and the Hummer SUV. The antiquated system of big advances and platinum record sales has died (or is at least on life support) along with the major labels. So while it is harder to make money the old fashion way, there are new and, more importantly, more ways of making money as a musician.
Performing live at concerts is still the best way to make money. It used to be that bands would perform to sell albums, now the musicians give away their music to sell concert tickets. However, not everyone can sell out stadiums, concert halls, or even high school proms. So, what is another great way for musicians to make significant income or supplement their concert income? Licensing!
Think of how many commercials you heard or saw today? Consumer Reports estimates that the average American is exposed to 247 commercial messages a day. The vast majority of the radio and television ads, as well as a growing number of internet and new media ads, are accompanied by music. Whether its Budweiser, which spends approximately $90 million a year on advertisements, playing the newest Dodo’s or Santigold (See Above) song or Apple promoting the newest IPhone with Feist, music is an integral part of advertising all over the world. Musicians can lay their claim to the billions of dollars spent on advertisements each year.
Licensing does not end with advertisements. One of the most common terms of art used in license agreements drafted by folks like me is describing the use of a song in “any medium now know or hereafter discovered”. This industry phrase means that a song can be used or synched to movies, television shows, internet programming, video games, radio programs, or any other programming or format which hasn’t even been discovered yet. Think about, when is the last time you watched a movie that didn’t have a sound track, a television show that didn’t have a theme song, or a video game that didn’t have background music? Watching old silent movies does not count.
As satellite and cable television expands and internet programming continues to grow the opportunities for music licensing grow proportionally. Budgets may vary, but mechanical royalties (the statutory rate that must be paid every time a song is broadcasted) must be paid. Licensing music can be a quick substantial pay day or a long term and consistent money maker.
The dollar figures for global music licensing are staggering. According to a 2007 report by eMarketer, the projected budget for music licensing in 2010 will reach $4.4 billion! How many artists would be happy with just a teeny tiny percentage of that huge pot?
Just knowing that the licensing money is out there does not make it a reality for most independent artists (I’m anticipating your questions). For independent artists who are not signed to a publisher, it is still difficult to get your music in front of the licensing decision makers. There are several services out there via the web which offer solutions: Pump Audio, Taxi and my favorite (bias added) Music Dealers. These sites allow artists to upload their music to catalogs with the hope that a music supervisor seeking independent music visits the site and selects their song. Some sites are non-exclusive, meaning you can upload your music to more than one, while other require exclusivity. Always read the contract (even the click through contracts)!
Other options for getting your music licensed is to attend music seminars, panels, events, conventions. Research where the industry people are going to be. Buy a badge to CMJ, SXSW, Midem, etc. Music supervisors and a&r types are always at these types of events networking and trying to find the right sound for their project. If you don’t run into the right folks there you can start networking on your own to find managers, lawyers or other independent licensing reps of music. A lot of times these types have the inside track (which is usually a coveted list of contact info for music supervisors in all types of media like movies, tv, and video games) to the decision makers. For a split on the fee, independent reps will submit your music for your. While there is no guaranty, your chances of having a supervisor actually listen to your music is much higher when it is submitted by someone like this.
Just like everything else in your career as a musician, you will only go as far as you and your talent take you. Having great music alone is not enough. You have to treat it like a business. Licensing opportunities will not just come to you. Go out there and sell it. Network, meet the right people, create a buzz and capitalize on every opportunity (no matter how small) that is presented to you.
I have written about Section 181 and the tax benefits it gives to film makers and music video producers in the past. Well, I did it again. It continues to amaze me that more people in the entertainment industry are simply not aware of this tax break. It is an amazing way to save money and give your investors some peace of mind. Here is an article that is going to published this month by firm.
American film makers and savvy investors received a bailout of their own recently. H.R. 6049, the Renewable Energy and Job Creation Tax Act of 2008 (“Act”) recently passed the House of Representatives and then became law by passing the Senate with a 93-2 vote. Buried deep within the Act is an extension of Subsection (f) of Internal Revenue Code Section 181 (“Section 181”). The Act calls for the one year extension of Section 181 from December 31, 2008 to December 31, 2009. For the select few that were already aware of the benefits of Section 181, this is good news (great news if it passes the Senate). However, for most Americans, they have no idea what Section 181 is and how they could potentially benefit from it.
Section 181 was Congress’ reaction to what had come to be known as Runaway Productions. A Runaway Production was a movie or television show that was typically produced by Americans and filmed in the United States which left the to be produced and filmed on foreign soil. Hollywood, like many American industries, had grown tired of the high cost of labor and taxes in the United States. Canada and other countries, identifying the potential financial benefit, took advantage and successfully lured American film and television production to their soil.
The government’s reaction was to include Section 181 within the American Jobs Creation Act of 2004. Section 181 offers tax incentives for investors in independent film and television productions. An investor may deduct the money which is invested in a film or television production and actually spent or utilized by the production from his or her passive income earned in the same year. If the investor is also actively involved in the operation or direction of the production, he or she may deduct the amount of his or her investment from all income earned in the same year. Productions with budgets between o $1 and $15,000,000 (up to $20,000,000 if produced in a defined low-income location) which have at least seventy-five percent 75% of its production completed within the United States qualify under Section 181.
Investors can be either individuals or businesses. In order to comply with Section 181, an investor will need to complete the required IRS filings along with their normal tax forms. A qualified accountant and attorney are always a good idea when trying to decipher and utilize the benefits of Section 181.
Not wanting to be left out, several states got in on the tax incentive game. States such as Michigan, New Mexico and even Illinois appreciated the value of attracting Hollywood productions to their state and the boom to their local economies. State film offices are great resources for investors and film makers alike in determining what incentives are available.
Tax rebates and incentives for money spent on film or television production within a particular state combined with the benefits of Section 181 allow an investor to greatly minimize his or her risk on what would ordinarily be a somewhat risky investment. For example, if a tax payer is in the thirty-five percent (35%) tax bracket and a qualifying film is shot in Michigan which has a tax credit of up to forty-two percent (42%), an investor will be eligible to recapture seventy seven percent (77%) of her investment in a qualifying production. This recapture is realized before the film is even released and/or makes its first dollar. In today’s economy this type of investment assurance is hard to come by.
We will continue to monitor the Act and issue additional updates as they become available. For any questions related to Section 181 or private equity placements for film or television production please contact us at firstname.lastname@example.org.
What can we expect in the world of music in 2009? As I am a lawyer for musicians and not a music critic for musician, I cannot predict which band is going to make it big nor can I even wager a guess as to who is 2009’s Soulja Boy (please don’t let there be another one). What I can do, however, is perhaps offer a sneak peek as to what the hot button legal and business issues will be this year.
This year we are bound to see more lost jobs, closed doors and consolidations in the music business than what we saw last year. Depressing as it may sound, its better to be honest then to live in denial. The industry is in shambles and was headed that way even before the global economic meltdown. However, all is not lost my friends. The advantage that music and entertainment have over banking and auto makers, is that there are truly talented and creative people in the entertainment world. You cannot teach talent. In addition to talented individuals, the entertainment industry has another key advantage: a hungry public. When you combine talented and innovative people with a public who craves new, creative and unique ways of being entertained, you have a great market for sales and growth.
Here is some hard evidence for you: According to Soundsacn, 2008 saw a drop of 14% from 2007 for album sales with the real anchor being physical cd sales plummeting by 18.2%. The upside: digital downloads. Digital albums skyrocketed to a gain 32% over sales in 2007. As if we didn’t already know, these stats offer further proof that even though the CD is a dinosaur, the industry is not extinct.
Creative artists and management offering unique digital downloads can still make quite a bit of money. The best thing about the death of the CD is that it also means the death of sneaky “manufacturing expenses” and “hold back” clauses in recording agreements. Labels cannot (although they may still try to) charge an artist huge manufacturing costs and hold back’s or reserves for returned or damaged CDs when the artist is releasing a strictly digital album. Lowered expenses and increased downloads at fair prices equals more revenue. Artists who follow the digital revolution will continue to make money in the rocky economy.
Along the same line of thought, without the need for CD manufacturing and distribution, the need for a label further diminishes. An artist and a capable management team can hire the appropriate digital distribution company, marketing company and PR company and achieve the same gains as a label without the cost of losing ownership of the artist’s music and a lousy royalty split.
So my predictions for 2009 are that we will see even more innovative and creative ways to get music to the public. CD sales will decline even more and digital downloads (singles, albums, ringtones, videos) will continue to increase. Music will come in packaged deals for other products people are still buying: dvd movies, beverage sales (think energy drinks), computer and video games, sneakers, bikes, and more will include exclusive tracks of musicians who are truly on top of their game. Labels will continue to die or at least slip further into a darkening coma. The independent do-it-yourself artist will continue to make great strides getting her music to more people. Bottom line, more music will be available to more people via new and exciting mechanisms. Should be fun.
I am heading east next week to take part in the madness that is the CMJ Music Marathon. New York’s music scene is always great, but during this five day stretch there is no better place in the world to see and hear some of today’s best independent music. For us on the business side of the music scene it also a great opportunity to network, schmooze and drop names without trying to hurt one’s toes.
Last year at this time the word was that the major labels were in serious trouble. That obviously played out to be accurate. While the labels are definitely hurting, I have noticed that they are no longer the slow moving mass that they once were. Sure there is still the old guard pulling the stings of the A&R and creative departments at the majors, but I think it has finally registered that making money off of physical record sales is just not going to buy the CEO his 2nd jet anytime soon.
360 deals are being pushed hard by some labels and industry giants (eg. Madonna and Jay-z with Live Nation). Companies are taking a piece of everything an artist touches from album sales to touring to merchandise. In return the artist is promised national and international marketing and promotion by a label who still has the connections and manpower to launch such a campaign. I am still not sure if this model can be mutually beneficial. Judging by the insistence of some labels to only use 360 deals, I have a feeling they tend to skew in favor of the labels a bit more than the artist. Just a hunch though.
If a band is looking for a more traditional deal, they are still available. A one and five deal (one album with the option for five more) is still commonplace with many of the lables who are still around. These are typically too long of a time period and too onerous on the artist (transfer of ownership your music is the norm), but have been around for so long that they have become the “industry standard”. In the past a label would convince an artist that a long term recording agreement was the way to go and would sweeten the deal with a phat or fat advance. Not so much these days.
Bottom line, an indpendent band that kills it at CMJ next week will probably get an offer from one of the many lurking label execs present at its showcase. Whichever type of deal is offered, rest assured there will be a teeny tiny advance attached. Labels do not have any money. Its gone. The days of six figure advances and seven figure recording budgets are history. The labels’ belt has gotten tighter just like every industry in America. On top of that, we are in the final quarter of the year so any coin that the labels had has most likely been committed to an earlier project.
So what’s my point? Don’t wait for a killer deal. It just isn’t going to happen. Musicians should definitely listen to any offer and be courteous while doing so. Then they should think about this: can they do the same thing the label is offering on their own? If the answer is yes, and a band can forge strong relationships with strategic management companies, booking agents, merchandise companies and lawyers, they may not need a label. If a band can do all of that, they definitely do not want to give up ownership of their music or have someones hands in their pocket during a performance, at the merchandise tent and at the record store.
Lots to think about. Perhaps we should wait to think about it all until after next week when we have completed the music marathon.
SHAMELESS PLUG(S) OF THE WEEK:
Toki is getting well deserved press. Click her wicked cool necklace above for more info.
You may have already seen this, but I think its awesome:
The “hip” companies out there always have an ear to the streets/clubs/myspace music pages looking for the next best thing so they can glom onto him/her/them thereby making their company appear uber cool. If one of these marketing geniuses sees your buzzworthiness you may just find your music or even your bands image, likeness or name in a commercial on television or net. Even if you haven’t released a single or an EP, you can still license your music and wind up in front of a national or international audience. Granted, there are a lot of what ifs in this scenario, but it does happen and its pretty sweet when it does.
4 DVD set of the entire first season of “The Dog Whisperer” at amazon.com