[Editors Note: This is a guest blog written by Justin M. Jacobson, Esq. Justin is an entertainment and media attorney for The Jacobson Firm, P.C. in New York City. He also runs Label 55 and teaches music business at the Institute of Audio Research.]
While there are no real bright line rules that an entertainer must follow, there are some essential strategies that a musician should take into account when conducting their music business in the new year. As we have already explored, a musician should approach their career as a business, which includes following the applicable state and federal laws, to ensure they adequately and properly exploit their works and receive the full intended benefit from them.
With that said, we have compiled a few guiding resolutions that an entertainer should take to heart and implement this new year.
1. Always consult an entertainment attorney prior to signing anything. When you sign something, it will generally bind you to the terms of the contract, whether you understand them or not.
While this might seem obvious and straight forward, many individuals simply sign what they are presented without fully understanding the nature of the document and what the terms actually mean in a practical sense. A musician also may fail to realize that most agreements are negotiable; so, a first offer isn’t usually a “take it or leave it” arrangement, as most situations should permit the discussion and negotiation of some important points prior to the signing. If it is presented as a “take it or leave it” proposition, that is an indication that an artist might want to avoid the deal. Hard sell salesmen usually indicate that an artist should run. An artist should always have time to consider the deal after “the heat” of the moment has passed.
This is also an important resolution as sometimes an entertainer may just search the Internet to obtain some standard template or form in an attempt to feel that they are properly secure. In theory, this might be good and might work fine; but, an attorney specializing in the field will bring an expertise and understanding that ensures you have the proper terms and the agreement you sign actually operates as you intended it to. An artist’s worst nightmare is signing something that doesn’t provide the artist with the rights they thought they had. This mistake prevents them from fully realizing their work’s worth. If the cost of obtaining an attorney is too high, there are many volunteer organizations, such Volunteer Lawyers For The Arts, that provide cost-free or reduced fee legal guidance to creators.
2. Always obtain a license to use a “sample,” i.e., anything used in a recording that isn’t yours and is somebody else’s. Failure to clear a “sample” can cause more liability on a potential hit to the sample’s owners than the hit makes.
This is a fairly straight-forward resolution as utilizing something that doesn’t belong to an artist can subject them to liability. It is essential to ensure that an artist has rights to whatever they use. A simple motto is that, if this isn’t the artist’s, then the artist should not use it without first obtaining rights. This will save an artist many headaches and potentially thousands of dollars. An artist who creates their own beats and samples can also reduce the issues. We explored “sampling” basics in more detail in a prior installment.
3. If you’re a songwriter, make sure to sign up as a writer with a performing right society and index your songs. In America, they are: A.S.C.A.P., B.M.I., and S.E.S.A.C.
If an individual is a songwriter, they are entitled to various streams of income when their works are publicly performed. In order to obtain some of this income, the songwriter must “sign-up” with a performing rights society. These societies collect public performance royalties on behalf of their songwriters. In order to be properly paid by these organizations, the songwriter’s works must be completely indexed. This means that the songwriter’s compositions are properly listed in the performance rights society’s databases with all the appropriate ownership information. To sign-up and index a songwriter’s music, visit ASCAP, BMI or SESAC. My further discussion on “Publishing” monies is available on Hypebot.
4. Always file your federal and state income taxes, and consult with a tax professional to ensure you are in compliance with all state, city and federal tax laws.
This resolution is one that an artist should already be complying with in their personal life. In addition, if an individual started their own corporate entity to create their music empire, they must ensure that their yearly corporate taxes are also filed. An accountant should be consulted to make sure that all appropriate state, federal and/or city corporate taxes are properly filed. We explored corporate and tax matters as they related to the music business in prior articles.
5. Always register your copyright in a work with the U.S. Copyright Office because failure to register a copyright will prevent the recovery of certain damages for infringement, including attorneys’ fees.
While a creator can simply mail themselves a created work without opening it as a way to prove copyright, this procedure does not afford the creator with all the rights a registered copyright confers. Although the Berne Convention provides for a “copyright” in a work upon the creation and fixing of it in a tangible medium of expression, the lack of federal registration limits an owner’s available recourse if their work is infringed. My further discussion on why an artist should register their “copyrighted” work is available on Hypebot.
6. Always do a trademark search prior to selecting a company or entertainment name, and have a qualified attorney do so.
Before embarking on this wonderful voyage called “music,” an artist should ensure that the name and corresponding social media and website domains are available prior to creating and marketing works under a particular name. The worst situation is building a following with a certain name to only receive a “cease and desist” letter from another similarly named artist demanding that an artist stop utilizing this name. Ensuring that a name is clear prior to using it will save the artist from a significant amount of headaches and potential costly legal bills.
7. If you’re in a band or a group, make sure to have a signed band agreement that details the members’ rights and responsibilities.
Band members should resolve to ensure that all applicable band members’ matters and procedures are discussed and agreed to in a writing signed by all the members. This is necessary to avoid any misunderstandings. This document should list the proper mechanisms to ensure the continued profitability of a band, especially if certain internal situations or relationships begin to deteriorate. My further discussion on what should be included in a band member agreement is available on Hypebot.
8. If you have a manager, make sure you have a signed agreement with them.
In most situations, an artist’s first manager, or sometimes only manager, is their friend, family member or significant other. While, familiarity and trust may exist in these relationships; when money and in particular, substantial sums are involved, it is prudent to have a signed agreement. That document would outline who is entitled to what and under what circumstances. Since this is business, it is vital that all the parties understand the nature of the relationship and that all parties are adequately protected. Having an executed agreement listing all of the agreed upon matters ensures that a neutral arbitrator (the document) exists to hopefully resolve any differences that may arise.
9. If you are a performer or producer of a recording, always make sure you register with SoundExchange and the Alliance of Artists and Recording Companies to ensure you receive all the royalties you are entitled to.
All artists should resolve to ensure that they receive all the funds they are entitled to, including certain royalties they may not be aware of. Two of these royalty streams that many artist’s neglect to properly manage are SoundExchange and D.A.R.T. royalties from the Alliance Of Artists and Recording Companies (A.A.R.C.). These entities exist to obtain royalties on behalf of an artist that signs up with them. An artist signs up with these entities enabling these companies to collect royalties on the artist’s behalf. My further discussion on why you should sign-up for SoundExchange is available on Hypebot and for additional information on A.A.R.C., visit my prior article available and their official website.
10. If you are working on a recording with a producer or a performer that isn’t you, then you need an agreement with that person to clarify ownership of the recording.
An artist should always remember that if a contribution isn’t theirs, then the artist cannot use it unless they have rights from the creator to utilize it. This applies to any beat, vocals or other material that the artist didn’t personally perform and is included in a final sound recording. An artist should make a resolution to obtain an agreement with every individual they work with to ensure they have all the rights to utilize the finished material. We explored the need for an agreement with a producer of a “beat” and for any co-creator or co-writer.
As 2017 begins, an artist should remember that following these simple resolutions will be a great start to getting their music business house in order and running properly.
This article is not intended as legal advice, as an attorney specializing in the field should be consulted.
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