Sunday, October 4, 2015

Music Business/Law Tips - "Spotify Breaking Acts"

Spotify is the world's largest subscription service. Most people use its "freemium" model where they do not have to pay to listen. The good part about this is that Spotify has become a platform for new artists to be discovered, and on occasion Spotify will help promote and launch a new artist. Recently, Spotify helped break Hozier 's "Take Me To Church" and Major Lazer's "Lean On Top 10 via its "Today's Top Hits" Playlist, adding the songs to its artist development platform called "Spotlight", and targeted banner placements in "browse" sections of the Site. By putting the focus on these tracks and exposing them to millions of potential listeners, this caused more repeated "listens", and listeners started to share the tracks and add them to their own personal playlists - where ultimately the songs became viral hits. Sounds like the new radio to me. Let's hope there is room for indies as well as major label backed artists to participate. Ben McLane Esq

Sunday, September 20, 2015

Music Business/Law Tips - "Web Infringement"

With the simplicity of posting music and video online, one may think it is easier to prove copyright infringement, but according to recent court rulings this is not necessarily the case. Under basic Copyright Law, in order to prove copyright infringement, one must show: (1) that the claimant truly owns the copyright (i.e., song or video), and (2) that the infringer "copied" the copyright without permission. The second prong has two elements: (i) the copy must be substantially similar to the original, and (ii) the infringer had to have access to the copyright being infringed. The "access" element is very strictly interpreted when it comes to posting a song on the Internet for example. Courts have held that availability of the copyright on the Internet by itself is insufficient to prove access. In other words, just because something is online does not mean that the defendant saw it there and copied it. The plaintiff will have to show that there is "widespread dissemination" of the copyright being infringed. This can be demonstrated by lots of downloads and website traffic. The more traffic, the greater the likelihood that the defendant actually saw or heard the infringed work. For example, in a recent case involving Angry Birds video game infringement, since the Angry Birds app has been downloaded 1 billion times and has 40 million active users, that was enough to show widespread dissemination. Clearly most content online is not that popular, so be wary about bringing a copyright action until it is easy to prove. Ben McLane Esq

Sunday, August 30, 2015

A "Sunset Clause" in a Management Agreement essentially means that the manager still gets paid a commission after the deal ends on money the artist is still making off deals the artist signed during the term of the Management Agreement, but at a reduced rate from the what the commission percentage was during the term of the Management Agreement. For example, if an artist signs a 3 album deal during the term of the Management Agreement and the 3rd album comes out after the Management Agreement Term is over, the manager still gets paid a commission for the money the artist makes from that release, but at a reduced commission rate for a certain number of years post-term (on average 3-5 years), and the rate goes down to eventually 0% (e.g., 1st year post-term = 15%, 2nd year post-term = 10%, 3rd year post-term = 5%, thereafter 0%). Ben McLane Esq

Saturday, August 15, 2015

Music Business/Law Tips - "Consumer Data = $$$"

Universal has formed The Global Music Data Alliance (GMDA) which will analyze billions of pieces of digital consumer data to hopefully provide new revenue streams to labels and artists. Essentially, GMDA will inspect behavioral patterns of listeners/buyers (e.g., what songs a Democratic voter listens to) to find patterns that can be used for target marketing. This should allow artists to monetize their fan bases more effectively, and allow advertisers to better figure out where to put their ad dollars/which artists to tie in with. Ben McLane Esq

Saturday, August 1, 2015

Music Business/Law Tips - "Employee vs. Independent Contractor"

In the entertainment business there are a lot different employment situations: part-time, full-time, consultancies, internships, working remotely, etc. One of the most common arrangements is for someone to be an independent contractor. However, there are legal ramifications to this status, and often neither party really knows exactly if the worker is considered an independent contractor or a true employee with benefits. Although there is no exact definition of an "independent contractor", the California Department of Industrial Relations provides 12 factors that a court would consider if there was ever a dispute: 1. The most significant factor to be considered is whether the person to whom service is rendered (the employer or principal) has control or the right to control the worker both as to the work done and the manner and means in which it is performed. 2. Whether the person performing services is engaged in an occupation or business distinct from that of the principal. 3. Whether or not the work is a part of the regular business of the principal or alleged employer. 4. Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work. 5. The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers. 6. Whether the service rendered requires a special skill. 7. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision. 8. The alleged employee’s opportunity for profit or loss depending on his or her managerial skill. 9. The length of time for which the services are to be performed. 10. The degree of permanence of the working relationship. 11. The method of payment, whether by time or by the job. 12. Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests. Ben McLane Esq

Thursday, July 23, 2015

Music Business/Law Tips - "Joint Work"

If a song is written by 2 or more people with the intent to merge their respective parts (i.e., words and music) to create a brand new copyright – that is considered a “joint work”. Even though each part contributed is separate, once merged each writer co-owns the entire work. In other words, the lyric writer would then co-own the music portion, and vice versa. Under the Copyright Act, for a “first use mechanical license” (i.e., first release recording/cover) all the writers must sign off. However, for all other types of non-exclusive licenses (e.g., synchs), either writer can license the song on behalf of all co-authors, so long as all the writers are properly credited and paid for their shares. If a writer/artist does not want to create a joint work – he/she needs to make sure to have a written agreement with the producer, arranger and musicians that such third parties’ creative contributions are “works made for hire”, so they cannot claim they are a co-writer. Ben McLane Esq

Sunday, July 5, 2015

Music Business/Law Tips - "Become A YouTube Star"

Musical artists would be well advised to follow the lead of the dorky YouTube duo "Smosh" (i.e., 2 bozos with a webcam) who have built an empire of 7.4 billion combined views and become very rich in the process (grossed 10 million in 2013 according to Forbes). Here are a few tips of how they did it: 1. Make a video performing a popular song (their first successful video was a goofy cover of the "Pokemon" theme); 2. Post new content often (over 10 years they have uploaded over 3,000 videos); 3. Target and create content for a specific audience/demographic (in their case teens is the market they connect with); 4. Diversify the brand (they have a YouTube Channel, a website, a blog, an app, a videogame, they release records, they have their own merchandise line, they filmed their own theatrical movie for digital release, they created an original web series - they even have Spanish language versions of their content); 5. Encourage fans to create their own original Smosh related content/take-offs and upload them to YouTube to expand the brand; and 6. Partner with a larger media entity to help push and fund more content and create more advertising revenue (e.g., YouTube, Maker, Machina, Awesomeness TV, etc.). Advertisers pay big bucks to be affiliated with a brand that has lots of views online. A recent Variety survey polled teens ages 13-18 about the Top 10 most popular stars in digital media. The top 5 were YouTube Stars and Smosh were #1 (Katy Perry was #9). Clearly becoming a viral sensation on YouTube is serious business these days and a great way to launch a real career. Ben McLane Esq