Tagged: Music

What to do During a Pandemic (for musicians)

So much has been written already about the devastating effects that COVID-19 is having on our industry.    Social distancing, whether suggested or mandated, means no live performances.  No live performances means no money for venue owners, security and staff, ticketing companies, the artists and their teams.  Without live performance revenue all of these individuals are without the revenue that normally pays their bills.

While some of the potential and actual legislation and ordinances put forward by government officials will look to help our industry, specifically bartenders, wait staff and other hourly workers, the musicians and their teams will likely not benefit from the same.  As we have highlighted so often, the music industry has shifted in such a way where the majority of musicians who make a living via music depend almost entirely on live performances and the merchandise and sponsorship opportunities they afford them.

We, like the rest of the world, do not have an immediate solution to make up for the loss of income caused by COVID-19.  However, our experience allows us to make a few suggestions specific to our musician friends and clients to help during this uncertain time.

1.  Create more content.  This should really be the primary focus of all artists right now.  Take advantage of this odd period of time where the world is forced to stay at home to give your fans new content to consume.  There is no doubt that people will be glued to their devices now more than ever.  Fresh content can keep current fans engaged and introduce you to a new and bigger audience.  Whether it is releasing new music, creating video content or streaming live on the ever growing digital platforms like Twitch, Mixer or Caffeine, keep active and keep in front of your fans. Maybe accelerate that release plan and delay that tour schedule.

2.  Plan ahead.  Hindsight is always 20-20 and it is far easier said than done to save money for a rainy day or a pandemic, but take this time to plan out the rest of your year.  Plan financially as well as creatively.  While very few people expected this type of event to occur on a global level, now that it is here, we can all plan for it to happen again.  Get with your team, including your business management or financial planner, and figure out where you stand and how to maximize revenue for the future.

3.  Review your current status.  Remember those contracts you signed last year or the year before?  This would be a good time to review them and see where you stand.  Are you recouped?  Have you delivered everything you were supposed to deliver to satisfy your obligations?  Is it time to request an accounting or an audit to find the royalties that still haven’t arrived?  Take this time to talk to your counsel and look at your contractual situation.

We are living in a crazy time right now. Focusing on what you can control rather than the unknown is solid advice for everyone at a time  like this.  For musicians and creatives, controlling their careers by following some of these suggested steps is a great way to start taking back some of the control that has been lost due to COVID-19.
PLEASE STAY SAFE AND CONTACT US WITH QUESTIONS, CONCERNS AND IDEAS.

How Do You Split Up Publishing?

Publishing is an often discussed and rarely understood element of music.  For those working as musicians or within the industry, understanding publishing and how it is divided is essential.  However, even for those of us that have a grasp on publishing, answering the question of how publishing is or should be split is not easy.

There is no bright line rule or formula that must be followed when divvying up the publishing of a composition.  In a common (and usually fair) scenario the publishing is split equally between all writers who contributed to a song.  In an even clearer scenario, one writer (typically a producer for pop/dance music) comes up with a melody and a writer comes up with the lyrics.  Then those two split the publishing 50% each.

As we all know, life and the music industry is just not that simple.  Think about a band that has 4 members.  One member writes the lyrics, one comes up with the hook, one contributes to the melody and one just plays the drums (sorry drummers).  Should each band member get 25% of the publishing?  Again, it depends!

If a band is truly collaborative then the drummer in the above example may have written the entire melody to another song while the lead singer fixed his hair in the mirror.  Or maybe the guitarist wrote the entirety of a song while the rest of the band was at the bar.  The scenarios of how a song are created are limitless.  That is why we often recommend that a band enter into a band member agreement that states that all songs, regardless of who did what, are split equally.  A band, like a family, is a delicate and complex thing full of personalities, egos, opinions and emotions.  Setting up an equal split at the outset and putting that into writing can diffuse fights before they occur.

On the other hand, having a  pre-determined and documented split could also build resentment and disdain.  If your bassist never contributes to the creation of a song and the other members work tirelessly at song writing, chances are that the s$%t is going to hit the fan eventually and the agreement will be revisited to eliminate or lessen the bassist’s participation.

Bands are actually easier when it comes to splitting up publishing as compared to pop and hip hop music.  It has been widely written about that many of today’s top 40 artists co-write with may top-line (lyrics) writers and producers.  That’s if those pop and hip hop artists write at all.

It is not uncommon for a pop song to have 3 to 7 writers on it.  Look at this year’s Grammy nominees to see just how many people it takes to create one song.  A commonplace is to have a team of top liners work with one or two producers to create demo songs.  Those demo songs are pitched to various artists by A&R reps from labels and publishing companies as well as managers and other industry insiders.  A demo song could make the rounds looking for a home for years.  Once it is finally selected by a recording artist the publishing splits are sometimes the last thing to be determined.

Playing out the above example, let’s say Kelly Clarkson selects a demo song that was written by the writing team of Julia Michaels and Justin Tranter (top liners) and produced by Mark Ronson.  Kelly then puts her spin on the song and brings in her own producer, Jesse Shatkin, to tweak the production a bit.  So now you are looking at 5 people that get a share of the composition.  Now the question becomes, how are those 5 people splitting it up?

Again, the method is not always the same.  However, the typical way a pop song’s composition is split is 50% to the producers who create the melody and music and 50% to the lyricists.  In our above example, Mark and Jesse may split the 50% tagged for the producers and Julia, Justin and Kelly split up the remaining 50%.  Are the splits going to be equal amongst them?  We will leave that up to their respective lawyers and managers!

The bottom line when it comes to publishing splits is that it is always better to have a conversation with your co-creators sooner rather than later.  The last thing anyone wants is to release a song, watch it do well and then fight over the splits.  Trust us.  That is no fun for anyone involved.

SoundCloud Listened (to us)

Sometimes speaking out works. listened and modified its new artist contract.

Thanks to some solid journalism (take that #fakenews), and the power of artists and their representatives (like yours truly), SoundCloud revised its new artist monetization agreement.  The program introduced by SoundCloud four years ago allowed select artists to earn a share of ad revenue and subscription fees by monetizing the use of their music.  Finally ready to go to the masses (and keep up with competitors), SoundCloud announced the ability for all Premier Members to monetize.  With the announcement came a long form, click-through, agreement.  That agreement left quite a bit to be desired.

The biggest outcry from the artist community was over a “Covenant Not to Sue”.  Basically this means that if SoundCloud screwed you in some way, you would have no right to seek retribution in court.  We were less concerned with that clause as we were with the completely ambiguous payment schedule, the improper method for notifying artists of changes to  payment terms and the extremely short amount of time to review statements (if and when the statements were ever delivered).  While the Covenant Not to Sue is concerning, there was arbitration language included which offered artists the ability to challenge any issues with SoundCloud through the arbitration process rather than in court.  There is a definite difference between a law suit progressing in court versus a matter in arbitration, but it is not extremely unusual to have this type of clause in this type of agreement.

The ambiguity was far more concerning to us.  How can anyone agree to enter into a business relationship where the party who is owed money has no idea when or how they are going to get paid?  How could you agree to enter into an agreement when you aren’t sure if the agreement has been modified and you could actually be earning less than what you originally agreed to?  To us, these types of unclear and unfair terms were the main issues with the SoundCloud artist monetization program.

With the help of @verge and others, SoundCloud, took heed and modified its agreement.  Unlike our current government, when the people are outraged and nothing gets done, SoundCloud reexamined its agreement, agreed there were fundamental flaws and took the necessary steps to make the needed changes.  Kudos to a company who caters to musicians for actually listening to musicians.  I hope this trend continues.

Need a Publisher? Are you Sure?

Maybe it is a millennial thing or maybe it is just a product of the industry but we consistently hear several things from new artists that are trying to make it to the next level:

“I need a manager”

“I need a label”

“I need a publisher”

Sometimes there is a need for one of these.  Sometimes there is a need for all of them.  But when does an artist really need a publisher?

We think there are only a couple of situations where a musician who writes music truly needs a publisher rather than self-publishing:

1.  You are a top-line (lyrics) writer or producer that needs a publisher to set up writing/recording sessions with other similar or more established writers or producers.

Or

2. You are in need of a substantial check as a loan/advance.

Going in reverse, the only way you are going to get to #2 is if you have a previously released catalog of music that is making substantial revenue on the publishing side of things (actual record sales, licenses, performance royalties etc.).  Obviously, easier said than done.

So in our opinion #1 is probably the best and primary reason that an artist should consider or seek out a publishing situation.  If you are a writer/producer that either writes for him/herself or has written for another artist and your goal is to try to continue to do so or write with writers who have credits on gold/platinum albums, a good publisher should be able to facilitate this.  They should be able to pair you with established and up-and-coming artists that have budgets behind them.  Getting in with those artists and getting music actually released with a budget for radio/pr etc. obviously builds your own value and the value in your publishing.

As many of you know, getting tracks to the top artists is incredibly difficult.  Even if you have a direct line to the artist you still have to get through the artists, management, publisher and label to even have a shot of getting a placement on that artist’s album.  Getting a writing session with the artist is even more of a challenge.

If you are at the point where you have the chops, you have a history of writing really solid music, your previous writing is actually earning you some money and you can write for other people, you want to make sure that you are doing everything you can to maximize your value and that of your publishing.  We have so many stories of writers/producers that were involved in big songs that weren’t credited the right way or were left off registrations for some reason or the other.  So making sure you are handling your publishing yourself is the first step in preparing yourself to even be considered by a major publisher.

Please don’t get it twisted (as the young folks say), if you self-publish you better be able to administer your works or have a lawyer/manager who knows how.  Without registering your music with the PROs or securing correct split sheets or hounding labels for statements or hitting up independent artists who have used your music, you are essentially lighting money on fire.  You have to know what rights you have in and to your publishing and how to go about collecting it.  Registering works is not complicated.  Understanding how and when you get paid from those works is.

There are several companies popping up that are offering admin services.  Some are directly tied to the big publishers but then you have companies like CD Baby and Tunecore rolled out an admin service and functions a couple of years back.  Songtrust is another one that offers a ton of services including administration of publishing.  We have clients that have positive things to say about each one and those that have negative things to say about each one.  So we will leave it up to you to decide if one of these outlets is right for you.

Remember, if you write a song and do nothing to register it or attempt to collect on it, it’s not really “published”.

Just like everything else in music (or most industries for that matter) you have to work your way up.  You won’t get a publishing deal that makes sense unless you have already proven yourself as a writer.  It is tough to prove yourself as a writer without getting a break in a very competitive industry.  But you won’t get a break at all if you don’t treat your writing like an actual business and get the people you need to be in your corner to help you do so.

What’$ in a Stream?

There have been a ton of articles written about how the current revenue models created by streaming platforms are grossly unjust and woefully inadequate as far as compensating artists.   Great sources like Digital Music News have compiled hundreds of pages of Spotify reports in an effort to truly understand how much money an artist can make per stream.  Forbes via Quora has probably the best breakdown of how Spotify, Apple, et. al. work with musicians, labels, publishers and “back office services” when calculating the true revenue per stream.

Unfortunately for artists, the result of all of the calculations results in the following analysis:  The revenue per stream is really really really low.  Like $0.004891 per stream low.  Easier math to contemplate is to figure that for every 1,000,000 streams on Spotify, your band will make $5,000.

More crappy financial news for musicians.  The fact that music industry is on a never-ending downward spiral is as newsworthy as another allegation that Trump has ties with the Russians.  Everyone knows.  Yet, a funny thing keeps happening with all of the artists that we work with here at L4M and The Propelr.  They all turn to their numbers on Spotify before literally everything else.  The success of a project, in their minds, is almost exclusively dependent on the number of streams on Spotify.

So if your music isn’t on New Releases Friday or doesn’t make it onto Rap Caviar, how does an independent artist get significant spins on Spotify?

Not surprisingly “streaming promotion” companies are popping up.  Promises are being made that for approximately $5,000 you can be assured of, wait for it…1,000,000 streams on Spotify (no risk offer!).  I’m not saying that these companies cannot achieve this benchmark but it leads to a greater question of what is the value in having millions of streams, especially if you have to pay for them.

Paying for spins is not a new idea.  Payola ruled the industry for decades.  Payments to program managers and dj’s of radio stations were as common as paying for studio time. While Payola was officially made illegal by Congress in 1960 some form of pay for play remained commonplace in the industry for the next fifty years.  Rather than straight up paying for radio rotation, promotional payments were made as marketing expenditures and not-so-cleverly identified as artist or record promotion.  In 2005 the State of New York settled with the majors to try to put a stop to this practice and loop hole in the law. There was a chilling effect after that out-of-court settlement but those who have tried to get their music on the radio still know you have to pay someone to get there.  It’s just the way it is.  Want a number one album, plan on spending $200,000 (according to an anonymous label source).

With the advent of streaming officially taking over the value of physical sales for the major labels, the labels are forced to (finally) face the fact that they are in the streaming business rather than the download or sale of music business.  (Click Here for a great article about it from Music Industry Blog)   That means that there will be far more attention, effort and dollars going into boosting the numbers of spins that a song receives.  Labels will most likely swallow up some of these independent spin maximization services and look to infiltrate the algorithm and fan behavior platforms like Pandora and Spotify.

With the labels spending more time, money and attention on the importance of streams is that 1,000,000 spin number even worth it?  In short, yes but don’t pay someone to get them for you.

First off, there is no guarantee that these promotional streaming companies can achieve authentic spins.  Think of boiler room scenario where computers are set to repeat on your song.  Is that worth it to get to 1,000,000 streams?  Sure it is worth about $5,000, but that is what it cost you.  So did you gain any fans?  Will you be able to point to the analytics that Spotify provides and show promoters that your fanbase is active in a certain city?  Can you spend money on Facebook advertising your merchandise in a specific market based on the analytics you get from those spins?  No to all of the above.

There are ways to get authentic fans and via those fans, authentic spins.  One way is to reach out directly to folks at a platform.  Spotify employees repeatedly tell us they are far more likely to open a personal email versus a canned announcement or press release form a label or management company.  Identify a playlist that you really like and try to find out the editor of that playlist.  No guaranty that you will hear back from them but it is definitely worth a shot.  Also look to distributors for help.  If you have a track record of selling your music independently or getting tens of thousands of streams, you may be able to entice a distributor to put your music out to all outlets.  These companies have teams that are in constant communication with streaming services.  They will pitch your music to playlists and have the relationships to actually get it done.  Finally, when you release your music, make sure you direct everything, your press/social posts/interview answers etc. to the platform on which you want the most spins.  Use embeddable codes from your chosen platform on every post to maximize spins.  All of these and the help of a solid squad will help to maximize spins, revenue and happiness (well maybe not the last one).

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 (lschulz@tkhlaw.com)

 

#Squad

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.

The Golden Oldies – Recapturing Pre-1978 Copyrights

We have covered several topics on recapturing copyrights here at Lawyer 4 Musicians (see Recapture Basics and Heir’s Rights), as the clock started for copyright owners to terminate a record label or publisher’s grant of rights in 2013. But what if you granted the rights to your copyright before the Copyright Act came into effect (before 1978)? Are they lost for forever? What if I am an heir who has inherited hundreds of songs that are being controlled by someone else? Never fear, with just a gentle tweak in termination timelines, the Copyright Act addresses recapturing of copyrights pre-1978.

Section 304(c) of the Copyright Act allows the copyright owner or his or her heirs to recapture a grant of their copyrights starting on the 56th year from when the copyright was originally registered. Why is it 56 years instead of 35 like post 1978 copyrights? Glad you asked…A little history for you . . . prior to the enactment of the Copyright Act, a copyright was split in two consecutive 28-year periods (this means you could own a copyright for 28 years and then renew it for an additional 28 years) for a grand total of 56 years. Once the Copyright Act was enacted amendments were passed to extend pre-1978 copyrights for an additional 19 years and then again another 20, totaling a whopping 95 years (28+28+19+20). Section 304(c) allows copyright owners or their heirs to recapture for the remaining 39 years that were added by the amendments, (with a few rare exceptions).

The rest of the recapturing maze is the same as post-1978 copyrights . . . simple right? Sort of. The copyright owners or their heirs have a 5-year termination window after the 56th year during which the grant of rights may be terminated. But in order to exercise the termination, the owner must provide written notice to the grantee with an effective termination date falling in the termination window. The notice must be served between 10 and 2 years prior to the effective termination date. Here is an example:

Copyright Registered: June 15, 1950

Termination Window: June 15, 2006 – June 15, 2011

(1950 + 56 years = 2006 + 5 year window = 2011)

Now the tricky part . . . the notice is dependent on the date you want the termination to occur. If you take the above example and want the termination to be effective on January 1, 2010, the termination notice needs to be given to the grantee after January 1, 2000 (later than 10 years before) and before January 1, 2008 (prior to 2 years before). The notice needs to be signed by the owner or if the owner is deceased, those entitled to more than 50% of the copyright interest (see Heir’s Rights article). Then the notice needs to be recorded in the Copyright Office prior to the effective termination date.

A bit complicated, but if you can do the math and send the letter those copyrights are as good as yours! And, of course, we are here to help. Just ask!

Stay tuned for more posts on Lawyers 4 Musicians, after a long hiatus we are back, keeping you updated on all the ins and outs of the music biz!

Movies and Music, Still Possible Money Makers

From indie to major (bucks)

From indie to major (bucks)

How depressing is the economy?  For musicians and industry professionals who make a living off of musicians, times are as sad as a Cure ballad.  Not a day goes by without a record label, distribution company, or music marketing company shutting its doors.  Up front advances are a thing of the past.  Traditional record deals are dead (which is not a bad thing) and it is getting harder and harder to find corporate sponsors to shell out five to six figure licensing fees.

What is a rocker to do?  Go see a movie (naturally).  Two industries tend to be recession proof in the US:  Movies and Booze.  People like to escape and what better way to do that then going to a movie or a bar and forgetting about the bonus that is not on its way or the third job you just took on to afford gas money for the band’s van.  If you can find a brew n’ view in your town, no doubt it is packed with soused movie goers on a nightly basis.

Unless you have a distillery in your basement, the likely alternative may be to invest in movies.  Granted the majority of my audience may not be at the stage in his/her life where they are even thinking of making an investment.  However, for those lucky few readers out there, this is the time to invest in movies.  State and federal tax incentives limit the potential risk by up to 70% in some cases.

Think I’m nutso?  Think movies are riskier then investing in a hedge fund run by some dude named Ernie Nadoff?  If so, then read this:  SCENE STEALER:  SUDDENLY, HOLLYWOOD SEEMS A CONSERVATIVE INVESTMENT.  See, the New York Times agrees with me too.

Movies that cost between 1 and 7 million are constantly making money.  Think of the different revenue streams:  box office, product-tie-in/placement, dvd sales, merchandise sales, on-demand sales, on-line (itunes/amazon/netflix) sales, etc.  So even those low-budget craptastic voyages about a third rate dance squad can turn a profit.

What about the musicians?  Think licensing!   While the low budget movies that are made today do not have huge budgets for music, they still need music.  Enter the independent artist looking to get his band’s music out to a wider population.  Most indi flix will give little to no money up front but will give a back end participation to the artist, meaning that the band will earn money based on the sale of the soundtrack.  An added bonus is the distribution that the movie’s soundtrack gives to a musician without any distribution rights.  Think of Juno or Garden State; staples of most hipster kids’ ipods.  Several of the artists on those soundtracks did not have distribution but were able to rake in money when the movie and the soundtrack took off (via physical and digital sales).

41_various-artists_garden-state-soundtrack

How Can Q-Tip Leave His Wallet Without the Tribe?

 

where's my wallet?

where's my wallet?

 

Recently I attended the Q-Tip and Cool Kids concert at House of Blues.  During a bumping version of Bointa Appelbaum, my friend Aaron, taking a brief break from bobbing his head off-beat, asked me how can Q-Tip play this song without the rest of Tribe?  Relishing the opportunity to spread my music and law knowledge I began explaining to him how copyrights work and wondering aloud whether a Tribe Called Quest had a band member agreement.  Aaron, much like most people I talk to about the law, immediately glazed over and went back to doing his version of the electric slide. 

I figure, however, if you are reading this blog, you may want to know how Q-Tip was able to publicly perform some of Tribe’s greatest hits or how Roger Waters could sing Dark Side of the Moon or how Phil Lesh and friends can delight fields of the unshowered with Sugar Magnolia.  These artists have the ability to dig deep into their former band’s repertoire for several reasons. 

Most of us have been to a concert where the headliner covered another song.  Bands can play other bands material at a concert so long as they register the performance (oftentimes after the fact) with ASCAP, BMI or SEASAC.  But the Q-tip situation is a bit different.  Q-Tip was treating the crowd to set full of classic songs made famous by his former group.  If Phife Dawg was on tour, could he ask if he “Can Kick It” (click on the link to see who holds the copyright)?

The answer, unfortunately, is that it depends on how organized the band was.  If they had a band member agreement (see https://lawyer4musicians.com/2008/08/ for more about band member agreements) it undoubtedly contained provisions for an eventual band break up.  Issues that may seem unnecessary today may have a huge impact later.  A leaving member or termination provision will have an invaluable effect on how your band’s brand is treated after the life the of the band is over.  If properly written, the termination provision will ensure that the band’s name and its value are not diluted.  It will set out who can use the songs, who can tour under the band’s name and who can re-issue recordings. 

 Think of it this way:  Smashing Pumpkins break up (for like the 5th time) but James Iha and Billy Corgan want to tour with new members using the Smashing Pumpkins band name and the Pumpkins’ catalog of music.  If there is no agreement between the members of the Pumpkins, and both try to tour under that name, they will both most likely fail or at least end up in court fighting for the right to use the name and songs.

For independent artists that are not quite at the band member agreement phase there are steps to take to ensure that this type of confusion and conflict do not occur.  First, just talk to your band mates about it; get a sense for where everyone is on the issue of song ownership.  Second, register your copyrights in your recordings.  The copyright registration  will allow you to designate the author of each song you register.  That way, if there is a debate down the road you can at least point to the copyright to show who owns what and who has to get permission from whom before a song is performed or recorded.  Third, trademark your band name.  The trademark registration will allow you to claim ownership of your band name and logo.  Finally, suck it up and put everything in writing.  Keep in mind your first agreement can be amended and modified as many times as you want. 

SHAMELESS SELF PROMOTION OF THE WEEK:  WHATZISFACE

 whatzCheck this MC out.  Okey Dokey makes the stiffest of us bounce a little bit.