Sharing is Caring, but please paper your collaboration
As seen from our last L4M post, success in the music industry is often dependent upon the people around you; managers, lawyers, and booking agents make up your “team”. But what about those other musicians that help you create the sound? The artist’s you work with to make a song. Collaborations are so common these days even bands with numerous members are bringing in teams of producers, a second percussionist or guitarist, and additional vocalists. So why does it matter? You work with your friends to create great music, right? Its true, but defining roles and ownership is essential in protecting your music. Some of the biggest disputes in the industry today involve payments to collaborators, the rightful ownership to a song involving guest musicians and artists.
Take for example the dispute between Jack Urbont and Sony Music Entertainment over the theme song for Iron Man. (Urbont v. Sony Music Ent., 100 F.Supp.3d 342 (2015)). Sony released a song by hip-hop artist, Ghost Face Killah, which used a portion of the Iron Man theme song and only received permission from Marvel Television but not Urbont. The main issue being when Urbont worked on the original theme song with Marvel was whether his contribution was considered a work for hire or should he own part of the composition with Marvel. The parties ended up settling out of court after Sony was granted the right to use a work for hire defense against Urbont. So what’s the takeaway? You need to decide prior to releasing any music whether your bestie is taking a fee, getting any rights to the composition or both.
“Work for hire” is a legal term in the copyright act that in a nutshell means you are being paid for your services as a musician but will not own any of the intellectual property to the song. Think of it as any service you pay for, if a carpenter makes you an original table, you pay him or her for the workmanship and the table, but the carpenter doesn’t receive ownership in the table and doesn’t receive a portion of the funds when you resell it. Same for a work for hire musician or vocalist. Work for hires are the most common when the musician doesn’t create anything original, they are just playing or singing what you put in front of them. However, work for hires are becoming more and more common with writers, musicians and producers who contribute original material to the song. Why would they do that? First because you give them a big paycheck and second because they don’t think the song will make more money then the paycheck, it’s a win-win for them.
On the other hand, if you are a songwriter and you ask your friend the guitar player to come in and write the melody, it makes more sense to split the ownership of the composition. This is when you want a guest artist agreement in place so that you won’t have to track down the guitar player every time you receive a license request or want to make a remix. What if you want to use part of that melody in another part of a song? You will need to ask the guitar player for permission and he or she can argue that they want their ownership percentage to stay the same even though your using only a portion of the melody. A guest artist agreement will prevent this headache as you can outline each individual’s rights and permissions involved with the song.
Sometimes artists will collaborate and give both a fee and ownership over the composition. In this case, the fee is treated as an advance that needs to be recouped against profits. Think of it as paying the artist upfront for what you think they will make off of the sale of the song in the future. Until the song recoups the advance amount they won’t receive payment from a label or you, even though they own rights to the composition.
So how do you ensure that all of this is done correctly? Unfortunately, a handshake will not suffice. A legal document signed by both of you will be necessary. Lots of writers and producers use session sheets to delegate publishing splits, but this doesn’t clarify who can do what with the copyright and definitely doesn’t help you in a work for hire situation. Having a lawyer draft this for you is the safest bet, but the good news is that often you can reuse work for hire agreements by changing the name and the fee instead of paying for a new document every time (don’t tell your lawyer I said that). The most important thing is to read the agreement and make sure you understand it!! Ask questions, do your research, and know what rights you have or are giving up. Just make sure that on the day you hit number one you’re not scrambling to get your former bestie to sign a work for hire agreement.
by Lauren Schulz (email@example.com)
I’m sorry (again) for the lack of posts over the last several months (make that years). The truth is that we have been too busy working and have let our attention to this important outlet lapse. Instead of promising to write more, we want to make sure we are posting quality info that can actually help musicians.
In line with that thinking, here is the most important thing that we have come to understand a bit better over the last 12 months or so: a musician’s team (#squad) is more important now then it has ever been. The team is still in second place behind the music (position 1a) and the work ethic of the musician (1b), but in today’s music industry, the people that you have working for you, representing you and seeking opportunities for you is more crucial now then ever before.
There has been plenty written about the demise of the major label system. What seems to be going largely unnoticed or undocumented is the growing roll of those left behind: Managers. Management (effective management) has now become the true one-stop-shop for a musician. Management is the new label. As management, we are faced with the same set of facts and challenges as a label. An artist creates music and now wants to bring it to the masses. Yes, you can get that music out yourself as an artist but how do you make a dent in the din of new releases on Spotify, SoundCloud or Apple?
To make a living as an artist you need to do more then just post your music on the internet. You still need to get a significant number of eyeballs and eardrums to consume your product. So the management team is faced with this challenge without (typically) the luxury of having the deep pockets, employees and relationships that labels have (or had).
An artist’s manager is now in charge of planning a release schedule, getting artwork created, lining up press (more than your mom reposting on facebook), booking shows, figuring splits, clearing samples, registering publishing, monetizing all outlets including YouTube and SoundCloud, paying out band members, featured artists, promoting the release and live shows, finding potential brand sponsors and licensing opportunities etc. etc. All of this without a budget. I’m tired just writing all of these duties and responsibilities.
I’m not implying that a manager is going to literally be able to do all of these things himself, but he will have to figure out who to line up to help with this process. Managers must either strategically team up with the right professionals or outsource these services without breaking the bank. Yes, getting your music on all outlets is pretty easy (TuneCore etc.) but getting on a top Spotify Playlist is not. Yes, booking a show in your home town is very doable but playing in another city is not. Yes, finding someone to remix your track is not hard but figuring out the rights of that new recording is not.
Our opinion is that artists should do what they are best at: making music. To permit this, managers need to keep everything else moving forward. Managers must leverage all relationships and forge ahead with qualified distributors, booking agents, pr agents, and lawyers to realize real success in today’s industry.
I’ve been told to write about what you know best so I can share the story of how we have created our team over here at The Propelr (www.thepropler.com). Obviously we have legal taken care of (www.tkhlaw.com) but we brought on staff to handle all admin from calendar/schedule to financial bookkeeping to merchandise fulfillment. We partnered with a PR company that shares in our percentage income from artists or gives us preferred rates when we need to use their services (ttps://subvertagency.tumblr.com/). We have a licensing company working out of our space that is constantly pitching our music (http://brewhousemusic.com/). We share space with a branding and marketing agency (www.workwithdomino.com) that helps with artwork, social media campaigns and overall branding for our clients. There is a concert promoter working out of our office too (www.silverwrapper.com). So short of having a booking agency in house, we have created a co-op of sorts that allows us to really serve our clients much in the same manner that labels used to do. Obviously I am biased, but I don’t see how else you can really provide value to an artist without building this type of squad.
Want to learn more? Just hit us up.
TBT: How to Make it as a Musician
Recently a client’s father asked if his aspiring musician daughter should put a physical care package of sorts together to send out to labels, managers and PR. He thought that this was the best way to get someone’s attention who could help out his daughter’s career. After politely disagreeing, this is what we suggested instead:
It’s really difficult to try to summarize how to make it as a musician. Especially in the current market. There used to be a defined set of steps to take but now the easiest answer is: it depends.
I think the be all and end all is good music. With a budget you can push crappy music, but eventually it filters out and the public loses interest.
So assuming an artist has good music, what are the next steps?
First, determine what content you are releasing: Is it a single, an EP, an album a video or some combination of the foregoing?
Set a release date and focus all of your attention at getting as many taste makers (blogs, websites, music influencers, friends, families, super fans etc.) to be aware of that date. Try to get some press (local or otherwise) to focus on the release and tease the public as to when the release is coming out so that you can maximize the attention on the day of your release. There are many ways of doing that: contests, give aways, bonus tracks etc. Something that will get people excited.
Once the music is out, you have to continue to push it. Usually this is done with touring. Sometimes this is done with radio promotion (which requires a decent budget). The press push continues and you look at where your music is performing well. Hit press in those areas as well as venues and try to tour there.
All along, you should be trying to sell merchandise (if you have it) at your shows and online. Bundling music with shirts, stickers etc. can help.
Try to get other musicians to support your release (and support there’s as well). You need other musicians for several reasons; touring with support, features on their songs, more fans to reach out to etc.
All the while, create new content. Whether that means releasing a video, releasing concert footage, releasing a b-side track or a follow up song, you have to stay present and can’t afford for too much lag between the time of releases.
Throughout this process you need a lawyer to make sure that everything is properly documented. Producer agreements, feature artist agreements, registrations etc. It is much cheaper to handle ahead of time then after the fact. A solid lawyer is usually the first thing you need when starting your career as a musician. Ask other entrepreneurs as to what professional they hired first. Typically it is either an accountant or a lawyer.
While a manager and PR team may help, it still comes down to content and the artist working full time on the project. No one will work as hard as you do for your own art. End of story. Artists who expect or hope that a manager will get them to where they want to go typically don’t even need a manager.
Demo packages are pretty useless these days. You need an EPK to be able to easily email people key information about yourself (contact info, social media numbers, soundcloud links etc.) but demos or promotional packages are ignored by industry folks 9 times out of 10.
The Up and Comers, Breakouts and our WOW Performances from SXSW
Now that South by Southwest has wrapped and we are all back at our day jobs, we at Lawyers 4 Musicians want to bring you back to the music and share with you our favorite showcases from this year’s festival. Since we are lawyers (and not musicians) we brought in Whitney Jones from Propelr Music and Shoplifter Music to give us that extra musical insight on the performances that impressed us the most!
- Lewis Del Mar at Whisler’s – this five-piece band was one of the favorite up and comers this year. We were able to catch them at their first show of the festival on Whisler’s intimate patio. The acoustic guitar mixed with electronic beat topped by frontman, Danny Miller’s laid back vocals, is a refreshing yet edgy new rock sound, certainly worth checking out.
- Flint Eastwood at Darwin’s Pub – a definite highlight, Flint Eastwood from Detroit creates huge anthemic electro pop songs that could easily be sung by Katie Perry. An amazing live show, it was a complete surprise to see the energy and intensity this woman (Jax Anderson) could bring to her crowd.
- Pillar Point at Flamingo Cantina – a tight performance from the charismatic frontman of Throw Me the Statute, Scott Reiherman. The layers and layers of synth, drums and guitar had everyone moving.
- Deep Valley at Bungalow – a true rock and roll female duo, Lindsey Troy and Julie Edwards, killed it. Troy’s, American flag fringed body suit gave her that true Joan Jett vibe. We loved her dominating and active stage presence (including her fearlessness to climb the monitors, drum set and anything else she could find).
- Cloves at JW Marriott Ballroom (Universal Showcase) – Australian singer, Kaity Dunstan known as ‘Cloves’, impressed us with a voice somewhere between Adele and Alicia Keys. With her strong and emotional vocals backed by keys and a guitar, she will be interesting to watch and see where Universal takes her.
- Jake Bugg at Old School Bar and Grill (Island Showcase) – We can’t help but love Jake Bugg, his cool persona and sound blow us away. His performance was on par, very tight, you could have mistaken it for listening to his album; the man doesn’t miss a key (or string for that matter).
Those are our favorites, check them out and tell us what you think, better yet, let us know if we missed one!
The Lawyers 4 Musicians team is at South By Southwest this year to meet, learn and discover all of the up and comings in the music world. We will be keeping you posted on events we attend, new findings and tips for musicians, people we meet, and strategies to help you navigate through the legal realm of the music industry.
Let us know if you have questions, thoughts and/or ideas to contribute. If you are at SXSW, come meet us. Schedule a meet up with Josh or I by emailing us at firstname.lastname@example.org or email@example.com. Hope to see you there!
Blurred Lines Decision
I’m happy to have been quoted in this article by Paul Schrodt and the Business Insider.
Please take a look here: http://www.businessinsider.com/blurred-lines-case-music-copyright-2015-12
Breaking Into the Music Scene: What the $%&%#** Should I Do?
Great question. With so many ways to get your music out to the public it should be easier to break into the music scene, right? Definitely Wrong!
We could write an entire book on the importance of your team as an artist. For the sake of brevity and sanity, let’s focus on networking and management for this post.
The number of individuals who post music to Soundcloud, YouTube, Facebook, ReverbNation, HypeMachine, Spotify, Pandora, MySpace (I think that site is still live), etc. is staggering. So while it is definitely easier to get your music on-line where it may eventually (randomly) be heard by the public, it remains just as difficult, if not more so, to actually get traction and make a career out of being a musician.
There is no one or best answer to this question. Unfortunately a lot of what permits an individual to “make it” in music depends on connections. So much of what happens in music is still based on who you know. While there are many stories of individuals grinding it out in coffee shops, selling cds out of their trunk, submitting demo after demo until, finally, someone with some clout (aka money) opens the magic gates to true exposure, the majority of musicians that have made it take a different route. Networking, schmoozing, pestering etc. are as important as great lyrics, production and stage presence. Going to panel discussions, meeting the right people or people that can lead you to the right people is hugely important. Please don’t mistake the necessity of having great music. You can be the best networker in the world and get your music in front of the exact right people, but if that music is not up to par, the door will quickly be closed.
Let’s assume your music is great and you just need the right people to hear it. What should you do? We at L4M consistently advise our clients to pick the best team members when embarking on a musical career. Try to find the right fit and figure out exactly who/what you need. A lot of artists assume they need a manager immediately. If the right manager is selected and he/she is utilized correctly by the artist, a manager can be an essential key for success.
Managers can quickly become a crutch or an excuse for an artist. Why am I not getting any gigs? Why am I not getting a publishing deal? My manager must not be doing something. While a good manager can secure some opportunities, a manager at the beginning of a musician’s career should be there to offer advice, tough love and help set up a plan for future success. Connections are a huge plus but having a level head and understanding the artist and his/her goals is equally if not more important.
Other key team members include a booking agent, lawyer and publicist. We could write long articles about the importance of each person, but in the very beginning of a music career, these people will most likely come with a certain modicum of success. L4M is obviously partial to lawyers being part of the team, but you will know when you need one (first deal, or band agreement or manager agreement). A good manager should be able to make introductions to all of the other team members you need. In fact, a good way to judge the skill set of your manager is to find out who he/she knows that can help build this team.
How do you find a good manager? Ask around. Don’t rely on websites (many of the best management teams don’t even have a website). Find an artist you admire and see who is on their team. Chances are that Scooter Braun isn’t going to take you on, but find out who he is taking on for clients. Those artists did not start with him as their manager. Reach out to people that know. Lawyers, publicists, other musicians should be your target when trying to find the best management fit.
Remember that there are two sides of a career in music: first and foremost the music followed closely by the business of music. If your music is great, your business skills and team need to be up to snuff. If your team is below par, your music will not get to the masses and you will sadly be lost in the (sound)cloud.
Music Publishing: Dispelling the Mystery (or at least trying)
One of the most misunderstood areas of the music industry is publishing. Trying to explain that there are two equal halves of publishing each equating to 100% (getting you to 200%), you are bound to get some glazed over faces. We work with several publishers, administrators, writers and producers and think (brushing our shoulders off) that we have a pretty good handle of how publishing actually works. Our contributor, Lauren Schulz, does a great job of breaking it down in this straight forward article below. While this is by no means a comprehensive treatise on publishing, we hope that it can shine the light on some of they dark, mysterious and befuddling issues that is music publishing. Enjoy!
The Purpose of a Music Publisher; What Does a Publishing Contract Do For A Songwriter?
Many individuals in the music industry are aware that once a songwriter or composer starts to receive compensation for their compositions or work, they often sign with a music publisher. But what does a publisher actually do? And what are the various terms of a good publishing agreement?
In a nutshell, a writer signs with a publisher to have the publisher handle the rights to their compositions for the purpose of making the writer more money. A publisher is experienced in the business side of the music industry and often has the connections to create opportunities for the writer that they could not create on their own. Additionally, when a writer handles their own administration, accounting, and/or promotion of their work, there is often very little time to continue creating music, leaving the writer with a not so successful business plan.
To break it down, if a writer is signing a publishing contract, the writer is essentially hiring the publisher to handle copyright registration, licensing, collection of the writer’s royalties and accounting services. This is often referred to as administration. This is a huge job that often takes a considerable amount of time and knowledge of the music business. A publisher handles quote requests, license requests, monitors how a writer’s composition is used, delegates any fees or payments, prepares paperwork as well as often negotiates license terms. Additionally, publishers collect performance, mechanical and synchronization royalties on behalf of the writer. These royalties are paid in exchange for different uses and sales of the writer’s work and involve third parties such as performance rights societies or the Harry Fox Agency.
In addition to administration, publishers will provide writers with advances and career opportunities. An advance is similar to a loan, given to a writer so that the writer may have an upfront income for his or her work. Often once a song is released, it could take a year or more before it starts to collect any royalties, meaning the writer has to wait a long time to get paid. An advance allows a writer to have income so that he or she may continue to create music. The amount of an advance often depends on the writer’s popularity, skill and potential opportunities. The writer then recoups (or pays back the publisher) through his or her collected royalties. Publishers also create opportunities for the writer. Publishers are often the link to performing artists, record labels and producers that will help generate revenue for the writer. These opportunities help a writer to maintain a longstanding and successful career in the music industry; basically a stepping stone to help a writer reach the next level in his or her career.
The next question then becomes, if I am a writer trying to develop my talent and create a career for myself, how am I going to pay for these services that a publisher provides? A publisher is paid by owning a portion of the copyright to the writer’s compositions. This allows a publisher to receive a percentage of the writer’s royalties for the use of his or her works. The percentage of the copyright granted to the publisher varies depending on how much responsibility the publisher is given. A publisher who only conducts administration will receive a lower percentage than a publisher who provides all of the services listed above. Often when a publisher provides administration services, opportunities to develop the writer, and an advance, the writer will sign a co-publishing agreement. A co-publishing agreement grants the publisher fifty percent of the ownership to the writer’s work on the publishing side (or twenty-five percent of the ownership including the writer’s share). This explains why a publishing contract is exclusive. A writer will not want to assign any additional portions of the copyrights to their work, nor will they want more than one publisher to handle the rights to their work.
A publishing contract is limited to a term, or certain period of time. A publisher will only own a percentage of the copyright for the work the writer creates during that period of time. For example, if a publishing contract has a term of three years this means that the publisher will own a percentage of the copyright for anything the writer creates during those three years. Often writers will also give their publisher the rights to their work created prior to the publishing contract. This allows a publisher to promote a work created by a writer five years ago that was never released. In exchange, the publisher might give the writer a larger advance. It is important to understand that a publisher does not control or limit a writer’s creative process. A publisher does not control the type or style of music a writer creates nor does a publisher have the ability to force a writer to collaborate with other writers or producers. Instead the publisher will bring opportunities to the writer, and the writer and publisher often decide together whether the opportunity is a good fit for the writer.
Overall, it is best to think of a publisher as an agent for the writer. The publisher will handle the business work, promotion, administration and accounting for the writer while the writer can be left to do what the writer does best, create music.
Help Me “Clear” This Song
L4M has been hard at work. Working so hard that we have neglected the site for a bit. To make up for it we have enlisted the services of our newest member, Lauren Schulz of Troglia Kaplan LLC. Lauren helps bring us back to the basics of Copyright law below. Enjoy!
Everyone from major movie producers to ad agencies to independent business owners all have the desire to incorporate music into a film, commercial, sampling or other production. Unless you have some serious skills to create your own musical composition, the majority of the time you already have that “perfect song” in mind to use in your new spot. While it may be tempting to just borrow a song from the internet or your own library, we all know (or should know) that that would be a big no-no. So how do you go about getting the permission to use that perfect song?
In music publishing world, this is called ‘clearing a song,’ which basically means that in order to use Queen’s “Bohemian Rhapsody” in your new commercial, you need to get the okay from its copyright holders. But how do you go about doing this and how do you find out who owns the rights to a particular song? The tricky part is that each song has two separate copyrights and you need to get permission from both of the right holders in order to use it.
The two copyrights are for the rights to the musical composition and the sound recording of the song. The musical composition consists of the actual written music, think notes on a bar staff. It makes sense that this is owned by the writer(s) of the composition, which is then usually assigned to a publisher. Be careful, if there is more than one writer to a song this could mean several publishers might split ownership to the copyright as well. The other copyright is for the sound recording of the song. This is the performance of the composition. This is often referred to as the master recording and the right holders are referred to as the master owner(s). Think of the master recording as a person in a studio recording a track to put on a CD. Usually the copyright to the master recording is owned by the record label, which generally finances the making of the album.
Now that you know about both copyrights, how do you find out who owns the rights to those copyrights, and then ask them for permission to use the song? First, start with the copyright for the composition to find out who the publisher(s) and writer(s) are for the song. The best place to look is the performance rights organization’s (“PRO’s”) websites. The most popular PROs in are ASCAP (American Society of Composers, Authors and Publishers), BMI (Broadcast Music Inc.) and SESAC (Society of European Stage Authors and Composers). The majority of artists register with a PRO in order to receive performance royalties. (see the post below for more discussion on PRO’s). So all you have to do is search for the song or artist on one or more of these websites and it should tell you who the publisher(s) are. If the song does not appear, look for songs on the same album. Although the publisher might be different for the song you are looking for, generally that publisher will know who owns the rights and who you should contact.
The more complicated task is finding out who the master owner is. This becomes difficult because there is no database or website that lists the master owner(s) for each song, so it might involve some trial and error. Remember, the majority of the time the master copyright belongs to the record label, so your first step should be finding out which label produced the album that the song you’re look for is on. A few places to start your search are the U.S. Copyright Office website, Spotify, iTunes, Wikipedia, or any site that includes a biography of the performer. Often the biographies will include which label the performer was signed to at that particular time the song was recorded.
The next step is to contact these publishers and master owners and send a request to license the use of the song. Make sure to tell them the purpose of the use, how much of the song you want to use, the type of media you are incorporating the song with, the length of time your production will be available for public view, and an estimated quote. The quote usually depends on the popularity of the song, the term, and the type of media you are using. For example, an unknown jazz instrumental used for the background of a TV commercial set to air for one year, will be considerably less than Queen’s “Bohemian Rhapsody” used in a commercial distributed on the internet forever. Therefore, pick your battles when you have a strict budget.
Although this process can get discouraging, it is something that everyone who uses music has to do. Once you start getting the hang of it, it becomes easier. Know that the process could take from one week to several months, so plan accordingly. Thus, be patient and in the meantime let us know if there are questions we can answer to help you along the way!
Check out this article by our friend, Chris Rucks for the biggest mistakes people make in music clearance.
Film Tax Credits: Yes They Still Exist
A few years back it appeared as though every state in our fine Union was scrambling to get some sort of tax incentive or tax credit on its books. The “Runaway Production” (film productions moving to Canada or beyond to save on production budgets) panic that spread across the nation caused state government officials to introduce and fast-track a wide variety of new legislation. The calm after the storm has left a rather muddied landscape with certain states eliminating their programs while some continue to thrive, albeit under the radar.
Most of the existing state film tax incentives require all aspects of production of a film or television production to take place within the state borders. Depending on how much is spent, how it is spent and the type of production, certain states provide incentives that can result in tremendous savings or “free” returns on investment (depending on your viewpoint).
A great chart of the remaining state tax incentives and the applicable requirements can be found HERE.
Coupling the various state tax incentives with the mysterious but enticing Federal Tax Incentive, Section 181 (which still exists) and you can potentially see upward of 50% of your overall investment returned in the form of credits and write-offs.
If your film or television production qualifies for one of these programs you can use it as a great way to entice investors. We don’t have to tell you how hard it is to get financing for independent film projects. Not only do you have to convince people that your film is the one that will succeed, but you have to scare the pants off them by telling them all of the risks and ways they may lose their investment through your investment documents (PPM/Offering). Throwing a few pages in these documents describing the various tax credits and incentives offered by the federal and state governments can be just the thing to get an investor off the fence and into your film production.