Music Industry News and Notes

DAMAGES FOR COPYRIGHT AND TRADEMARK INFRINGEMENT

Music attorneys are often asked if mailing yourself a copy of a cd or mp3 in a sealed envelope is that sufficient for copyright purposes. The truth is you have a common law copyright the second you record your song. The problem comes with damages. Registering a song with the Library of Congress not only makes the fact of copyright a public record but entitles the holder to statutory damages and attorney's fees if successful in court. 17 U.S. Code section 504 not only provides for a copyright owner’s actual damages and any profits of the infringer, but also allows the holder to elect statutory damages which does not require proof of amounts but provides for damages of between $750.00 and $30,000.00 in the discretion of the Court. If the violation is found to be willful as much as $150.000.00 may be awarded.

It is also a good idea to consult a music attorney with respect to registering a Trademark or Servicemark (you record company name/logo or band name/logo, for example). Federal protection is, again, not required to maintain a lawsuit if someone steals your company/band name, you may bring a common law action for 'unfair competition'), but it is preferable. The registration with the U.S. Patent and Trademark Office creates a rebuttable presumption of your ownership of the mark and your exclusive right to use it nationwide in connection with the goods/services listed in the registration. It provides listing in the USPTO’s database putting others on notice of your mark and dissuading them from using it. It also provides a basis for foreign registration of the name.

One of the traditional benefits of a federal Trademark has been the ability to obtain an injunction against an infringer's ongoing use of the mark pending a final judgment by the Court on the basis that ongoing infringement creates an ongoing irreparable harm. This meant that the trademark owners did not have to present evidence of a damaged reputation to obtain an injunction. This might have changed in the 'Herb Reed' case in which a Platters tribute band used the band's name, music and clothing styles in its shows. The Court refused to presume irreparable harm needed to get an injunction but insisted on 'evidence' of irreparable harm. How does one 'prove' this harm? Unfortunately, the judge did not discuss how trademark owners could establish such harms. For a further discussion of this case go to California Lawyer magazines website and read the wonderful article by Pamela A. Maclean.

Despite this ruling, most music attorneys will recommend you obtain a Trademark registration. To determine if you qualify you may contact me for a free consultation. Once a person, group or company has used a unique name in business in more than one state (by selling a cd to people in two different states or playing on a mutli –state tour) a Trademark may be registered.

Licenses: The Holy Grail for songwriters.

Licensing your songs to Television , Motion Pictures or Advertising is a splendid way to increase an Artist's profile. Clients of mine who've had songs appear on cable tv report a 1,000% increase in downloads the following week. Often the upfront money is slim for unknown artists but the long term benefits can be rewarding. For songwriters public performance royalties are generated every time a show is rerun.

To enhance your chances of getting a song licensed the following tips may prove helpful:

1. Own all the rights to both the recordings (masters) and the songs. Sometimes music supervisors need a song to plug into a scene at the last minute and having to clear rights from third parties (publishers, record companies, studio owners/producers) is unrealistic. Don't use samples unless you've obtained the rights.

2. Get to the hook immediately. Music supervisors often listen to dozens of songs under severe time pressure. Often if they aren't feeling it after fifteen or twenty seconds, it's on to the next one.

3. Have both vocal and instrumental versions of each song available. For backround music the supervisor wants to create a vibe but doesn't want vocals/lyrics distracting from what's on the screen. They might like the vibe of your tune without the distractions.

4. Eliminate profanity in the lyrics. Profanity knocks you out of consideration from the vast majority of opportunities.

5. Metatag your mp3's. Many supervisors are asking for attachments only and not cd’s. Nothing will kill your chances than the dreaded 'Track 9. Artist Unknown' appearing under your song. A contact phone number is also recommended. If the supervisor requests a cd send it in a jewel case with a spine that lists the song and artist. Some supervisors still 'bookshelf' the music for easy visual access.

6. Meet the supervisors at places like SXSW and Billboard conferences. There are always music festivals and music business conferences that have programs which revolve around music and television licensing. Sign up attend a panel discussion and then talk to them afterward.

7. Buy industry magazines and study websites that list current projects being filmed. Pitch your songs early and make sure your music fits the project.

NO RECORD COMPANY? NO PROBLEM!

More and more recording artists are distributing their music without a label. Not only are record companies trimming their rosters, making it harder to get signed, but the digital revolution has made the economic barriers to recording and distributing music a non-factor. However, this is also the problem—the number of Artists competing for the consumer dollar has skyrocketed. The most important question is how do you- the artist- get heard above the clatter?

Billboard magazine recently listed a number of web sites that have popped up to serve the DIY artist. None of these sites will help if the artist is unwilling to put in the hours cultivating and interacting with a fan base on Facebook, Myspace, Twitter and Youtube. Gathering a master mailing list of fans is critical. The list informs fans of tour dates, new videos, merchandise and downloads. Fanbridge is a site that allows Artists to combine all your followers from different social sites onto one master list. A very powerful strategy is to give exclusive content such as new videos, downloads or merchandise in return for email addresses. Fanbridge can assist with this.

Allowing fans to participate in Artists’ designs via contests is becoming increasingly popular. Talenthouse is a site that runs contests allowing fans to design album/poster art t-shirts; or create their own music videos. DIY artists often have a tough time getting high profile slots at popular clubs. A bad slot is always a tough sell to your fan base. Try soliciting fraternities at your local University to play at parties. Charities often are looking for artists to perform at fundraisers, and local community centers are a good source for putting on shows. These gigs may not pay well (or at all) but will help you raise your profile and may be a place to sell Cd's, t-shirts, etc. At the very least have friends gather email addresses from those in attendance.

Zync Music obtains licenses for DIY and obscure artists with regular success. A good synch license can raise the profile of a band overnight. Submissions are done via their web site.

Picking the right distributor for your music is important. Tune Core operates on a flat fee. CD Baby works on a percentage. Often these online distributors do little or no promotion. Check out ReverbNation which offers marketing programs in addition to distribution.

As always, never sign even the simplest Agreement with any Company without having it reviewed by a Music Attorney. Many agreements have exclusivity provisions that can hamstring an Artist in the future. Some ask for publishing rights. If the term is not fixed and reasonable, a termination cluse if certain performance criteria are not met is critical.

If music as a livelihood is a serious aspiration and it is not merely a casual hobby, having a Music Attorney by your side is necessary as you build your career.

Should we Support 'Net Neutrality'?

'Net neutrality' stands for the principle that all digital information should be treated equally and that Internet providers ('ISP's') cannot restrict access to sites based on economic considerations. This sounds like a no-brainer. Of course the ISP's should not be allowed to restrict traffic to sites that interfere with their commercial interests. We have a right to use the web as we see fit without interference from our providers.

However, the case that has encapsulated this debate involved Comcast slowing down access to peer to peer sites (file sharing sites like Limewire and Bit-torrent). Of course, Comcast was simply acting out of self-interest. Massive sharing/downloading of music and movies hogs bandwidth. Nonetheless, the internet service providers, as gate keepers, are in the best position to shut down massive file sharing that is stealing money from artists and entertainment companies on an unprecedented scale.

Google spends a fortune promoting Net Neutrality. The next time you hear Net Neutrality depicted as a call for Information Freedom, remember that it also means allowing crimes against the Arts to continue on a grand scale.

New Way To Sell Albums?

In my role as a Music Attorney, I read and hear a lot of new ideas on how to sell albums. The album as an art form is dying and with it the ability of musicians to make a living. Selling the odd song does not make up for an album sale. In this fast paced world, music listeners apparently feel that they don't have time to devote an hour to a musical experience. Today 'Dark Side of the Moon' probably would not make a ripple.

Mark Mulligan of Forrester research writes in Billboard that the Music industry should take a page from the Motion Picture model with staggered release windows. With movies the first release is to selected theatres to build up hype. Then a nationwide theatrical release follows. After 6-12 months the movie gets released on DVD. After another exclusive 'window' the movie airs on premium cable. After this exclusive period the film goes to ad supported network tv.

Mr. Mulligan suggests music adopt a similar model. Under this scenario, an album first gets released as a download only with special features including interviews, concert footage, alternative mixes, interactivity. A premium price is charged and those that are hard-core fans rush to buy this exclusive product. Perhaps it is only available for a brief period and then is pulled. After another exclusive window, the music finally is made available for free on ad supported websites.

Mr. Mulligan would have short windows of only a few weeks for each level, but I believe the Motion Picture model is more practical. If the consumer only has to wait a month to get the music for free he will wait it out. The final tier of a release on free ad supported websites should be at least a year after the initial premium debut. This won't save the album alone. Consumers must get a significant price break for purchasing the entire album vs. individual tracks. (This is already stating to happen as Amazon features many albums for $7.99 or $8.99 vs 99 cents per song). But everything should be considered. The album is a beautiful art form, and the industry needs to keep it alive to stay alive.

SONGWRITERS: GET IT IN WRITING!

Songwriters who collaborate should get any Agreement in writing. Once a person contributes lyrics or a musical hook, they are joint authors. Anyone involved can then issue non-exclusive licenses to use the song in commercials, tv shows, movies, etc and the royalties will be split equally. If you want a different royalty split, or if you want to limit who can license the song (or to whom), you need to get it in writing.

Furthermore, if musicians are helping with the arrangements but not writing the song itself, you should get it in writing that they are not authors. Rarely does a riff amount to authorship unless it's a vital part of the song ( think the sax solo in 'Baker Street' or the keyboard part in 'A Whiter Shade of Pale') but it doesn't hurt to avoid conflicts later if the song is a hit and everybody suddenly wants a piece.

Many music attorneys will charge a reasonable rate for a simple Agreement that you can use over and over again any time you collaborate on songs. Remember, it's a career, not a hobby.

To Sign Or Not To Sign

When I first started out as a Music Attorney, if I had a hot demo I could take over to a major label A & R exec's office and play it for him or her. In those days a good sounding recording required a large budget. Artist's needed money to go into a professional studio with 24 track capabilities. Few aspiring bands could afford this, and good sounding demos were rare.

With Pro Tools, Artists can make great sounding recordings in their bedroom.In addition, with the prevalence of music purchasing now over the internet and not physical stores, distribution is available to everyone. Many people think this signals the end of Record Companies.

So why sign with a label? The very fact that anyone can distribute a great sounding recording means that there is far more competition for consumers' attention. Over 100,000 albums were released last year and the number is rising annually. Only 6,000 of those sold over a thousand copies! Labels are more important than ever; not for recording or distribution, but for promotion. A good label knows how to make your target audience aware of your music and desire it.

Unfortunately, due to the factors I set forth above, record execs who used to get a few demos a week now get hundreds sent to them a day. Therefore, an Artist needs to build up a fan base through social network sites, touring and relentless self promotion to get to a Company's interest.

Once you have a good Record Company's attention, unless you are an established act, I would strongly urge Artist's to consider signing rather than going D.I.Y. A good Music Attorney can protect you with release requirements, minimum sales targets, etc. as a condition to getting option on future releases. Listen carefully to the Label's promotion plans which may include getting your music placed in television shows or movies. If the plan is sound, this will be your best chance to reach an audience.

An aggressive and well funded Record Label can still be the best path to success.

FREE OR NOT TO FREE

There is a growing feeling in some quarters of the music biz to capitulate and give music away for free (if you can't beat them...). As a music attorney I am constantly asked for feedback. The example everyone uses is Trent Reznor who counsels bands to give away free mp3's in return for collecting email addresses of your fans. I'm not so sure. Newpapers gave away content on the web and how did that work out? Once fans get your music for free how will you ever get them to pay for anything?

A manager of a new band I know absolutely believes in giving away his band's music for fan's email addresses, figuring it will make his artist more appealing to agents as an opening act. The theory is, if thousands are digging your music they will come see you when the show comes to town and BUY tickets. Prince gave away cd's to fans who came to his London shows. He makes more from concerts than cd's anyway....

Eventually, some say, it will be impossible to get anyone to pay for music so line up those advertisers. You want free music, you have to watch this ad...hmmm, sounds like broadcast television...are we going backwards or forwards?

Next up: free shows. The manager for Shiny Toy Guns got the band a boatload of money for doing a series of shows for Amstel Light. The shows and the beer were free. The band got a nice payday, the fans got a free show (and beer) and the brewery received publicity and exposure to thousands of thirsty party-goers.

Everyone wins? The road to success is not as clear as it used to be and having a great team (personal manager, music attorney, agent, etc) is more important than ever.

HOW TO GET YOUR MUSIC DISTRIBUTED

As a Music Attorney, I am often asked by modern musicians how to get their music distributed without a record deal. Jeff Price has started a company called TuneCore that serves the DIY Artist. For a flat fee TuneCore will get your music distributed online at all the major and new music sites including Itunes, Amazon, Rhapsody, Napster, Shockhound and others. They charge 99 cents per song per store and an annual fee to store your music of $19.98. Unlike traditional distributors there is no percentage charge and you give away no rights.

You get paid directly from the music site. Although, TuneCore is a distributor only and will not promote your music like a record company, they are starting initiatives. If you sells 200 copies of a song within 30 miles of a House of Blues you can get a guaranteed gig for the payment of $100.00. They are also working with Guitar Center to put together compilation downloads. Recently, they set a deal with Universal to funnel certain TuneCore acts to Universal's A & R department. It is unclear how Jeff decides which acts will be highlighted but it indicates he wants to be more than just a distribtor for bands.

Certainly, an Artist will still want to hire a Publicity/Promotion person. But making sure your music is already available across the internet is critical to take advantage of airplay or that surprise licensing deal with a television show.

As a Music Attorney I advise my clients to use all available means to get their music out there. If people hear your music at a show, they may go home afterward and attempt to buy the music online from their favorite site. If it's not already up, you will lose the sale.

TuneCore is one of my myspace friends and a valuable ally for the modern musical artist. Check them out at Tunecore.com

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What is a 360 deal?

Many musicians ask me, as a music lawyer, what a 360 deal is. Traditionally labels only got paid via an Artist's record sales. With sales plummeting labels figured their hundreds of thousands of dollars poured into an artist's career was helping attract fans at shows, sell merch, and get radio play; none of which benefited the label.

The Music Attorney's job is more important than ever in negotiating these deals. There is no standard and everything is on the table.

Some deals will involve the label getting income from some sources but not others. Some will involve passive income from, for example, merchandising, while other labels want to run and control the merchandising. The formula for the income involved with touring is especially sticky and the Artist's Music Attorney needs to fight hard for a favorable definition of 'net' proceeds given all the expenses involved in putting a tour together.

It is a new frontier and negotiations are as complex and important as ever. A good Music Attorney will protect the Artist from being exploited while acknowledging the Company's right to a return on their investment. Everybody wins.

MERCHANDISING RIGHTS

Record companies are realizing that they spend huge sums recording, manufacturing and promoting albums that end up getting downloaded and ìburnedî more than purchased. The labels have trouble earning their money back but the artist gets exposure that leads to revenues from publishing, touring and merchandising. The labels are now seeking participation in these revenue streams.

Traditionally, artists could avoid giving away merchandising rights but this is changing. Many major labels now insist on participating in this revenue stream..

A separate advance should be paid. However, these advances should never be recouped from record sales.

Many labels now sell merchandise directly to consumers via their web sites or newly created internet merchandise companies.

Artists should try to retain merchandising rights, if possible. Selling gear at concerts is big business. There is no upside to giving labels these rights, especially if the label is simply going to turn around and assign these rights to an established merchandising company.

If the record company is not seeking merchandising rights, the Artist can get an advance against such rights by negotiating directly with a merchandising company.

For artists on small labels, paying a printer and then having a friend sell gear at the shows is usually the only option. Even if there is little profit in doing this, selling shirts, jackets, hats, etc. with the Artist¹s name on it is worthwhile as it provides free advertising and exposure.

"PAYING FOR MUSIC IS STUPID"

I have friends who get all of their music from borrowing and burning friends' cd's or illegal downloads. The justification is still the same: the labels are ripping us off! A cd costs a dollar to manufacture but they charge $15.99....Well, it's not the cost of making the cd that determines profit. There are recording costs, marketing, promotion,etc. If the labels were ripping us off (like the oil companies) they'd be having record profits instead of bleeding red ink.

Next time you go to the movies and pay $5.00 for popcorn, or order a coke at a restaurant, think about how much those products cost to make versus why you are paying. Have you ever watched looting during a riot and thought 'People will always steal rather than pay if they think they can get away with it.'

Music is a good entertainment value. If you don't pay, your favorite artists will get dropped from their contracts.... and your life will be the worse for it.

ARTISTS/ LABELS TO RADIO: STOP RIPPING US OFF!

,p>In every other developed country in the world every time a song gets played on the radio the artist gets a royalty along with the songwriter. Not in the USA, however. Here, artists get nothing. My friend, pianist Philippe Saisse, recorded a wonderful jazz version of Steely Dan's "Do It Again". It was a huge smash on jazz radio in 2006. Philippe did not make a cent. Radio stations argue that radio play is free promotion for labels/artists and increase album sales. This is no longer true in a world of free downloads. Phillipe's record did not see any spike in sales from all of this airplay. The writers, Fagen and Becker, got (well deserved) paid each time the stations played the track, but the artist and his label who arranged, recorded, financed and released it, saw nothing. According to Billboard magazine, radio earned $20 billion in ad revenues last year. With labels and artists struggling financially, this injustice needs to be remedied immediately.

DEATH OF THE ALBUM?

Our lifestyles are increasingly frenetic and mobile. This has affected America's viewing and listening habits. Just as Tivo has transformed television, see changes in how we listen to music are occurring. Youth today, the drivers of the market, are listening to music on subways and cars on the way to school or work. Campuses are filled with students listening to ipods between classes. Music is listened to while checking emails.

This has affected purchasing patterns. Who has the inclination to listen to a 14 track 60 minute album? More likely, an individual song is purchased and put on 'shuffle' to create a personal radio station of favorite songs. This is perfect for the common fifteen minute listening experience.

What does this mean for aspiring artists? There is little point in recording entire albums. When an artist has two, three, four or five great songs, they should release them as a single or ep. They will be able to sell them physically at shows for less money and achieve more sales. The songs will be stronger and, therefore, will get more download attention than the inevitable album filler.

Artists should focus on quality, not quantity, in their releases. They will be that much more likely to make it into their neighbor's ipod 'playlist'.

NOBODY MAKES GOOD MUSIC ANYMORE?

I was looking through my myspace friends and decided to check out guitarist Kaki King. I sampled the music on her page and thought it was intriguing so I BOUGHT her latest album. After listening to it from beginning to end I was blown away. Later, at a MUDluscious show (an exciting L.A. I'm managing) I BOUGHT a cd from a band named Animatronics. This disc is amazing. In addition, new self made albums by Humdinger, Listing Ship, Amy Raasch and Sandy A. are as good as anything the labels have turned out over the years. There is great music everywhere, you just have to go discover it!

HIRING A MANAGER OR ATTORNEY

Rules and Philosophies in the hiring of Music Attorneys and Personal Managers:The Personal Manager gives advice and counsel in all aspects of the artist's creative career and bases his comissions accordingly. He should be free of conflicts of interest. He should have a total understanding of the artist's creative and business objectives; and have an enthusiatic belief in the atist's creative abilities.

The Music attorney should also have an understanding of the artist's creative vision and career objectives before he negotiates agreements with record labels, managers or publishers. Some artists should value and require long term development over big initial advances.Ý Large advances place enormous pressure on the artist to sell quickly or face being dropped from the company's roster due to financial consideratins. A large inital advance may work for a 'boy band' but not an 'alternative' artist.

Different career objectives and circumstances will dictate whether to seek a publishing contract or self-publish for artists who pen their own material.

For a free consultation call (800) 718-4658 or email at Randal@music-attorney.com