Music Business/Law Tips - "YouTube"

For an artist to maximize their YouTube presence they should do the following: 1. Shoot a video and upload. 2. List the artist and song title. 3. Describe the video (i.e., category = music). 4. Insert an ISRC Code in the metadata to generate a "buy" link for the song to iTunes and Amazon. 5. Enter similar popular artists names in the tags field to capture the target demographic and make it more viral. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Top 5 Success Elements"

Of course there are many factors that contribute to an artist's success, but all artist's that make it seem to have the following 5 things going for them: 1. Strong work ethic 2. Exceptional talent 3. Unique image 4. Perseverance 5. Professional team Ben McLane Esq benmclane.com

Music Business/Law Tips - "Synch Tips"

An artist can increase the likelihood of getting their music placed in film, TV and commercials if they take care of the following first: 1. Make sure to own the copyrights for both the masters and the songs embodied on the masters so there is easy licensing. 2. Make sure the music is "claim" and "sample free" (i.e., all legal issues/permissions/clearances have been worked out in advance). 3. Make sure that the person "pitching" has the authority to act as an agent (administrator) on behalf of all the copyrights. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Neighboring Rights"

“Neighboring Rights” mean an artist is entitled to royalty payments for the public performance of masters in key foreign (i.e., non-US) countries. This form of royalty is payable only to the record label (50%) and the performers on the master (the other 50%). It does not pay the songwriters whose songs are embodied on the masters. Money is collected from performances of the master on/in foreign radio, TV, theaters, clubs and restaurants. For an American artist to be eligible to collect, the master must have been recorded in a participating foreign country (e.g., the UK). A record recorded in the US generally does not qualify. Like joining BMI or ASCAP to collect songwriting performance income, an artist must join a foreign neighboring rights collection society to get paid. One of the best known ones is the Dutch society called SENA [http://sena.nl]. Ben McLane Esq Benmclane.com

Music Business/Law Tips - "ISRC Codes"

ISRC stands for International Standard Recording Code, and is like a bar code for recorded music that identifies songs and videos worldwide sold in the digital realm, and helps tracks digital sales/royalties. It is required to have an ISRC code to sell on iTunes and to chart in Billboard. Each song on an album (or each single) has to have its own ISRC code. You can get ISRC codes here: www.isrcmusiccodes.com (the current cost is $32/song). Don’t forget you still need a separate bar code to sell a physical CD. Ben McLane Esq Benmclane.com

Music Business/Law Tips - "Fan Discovery"

It is important for an artist and his/her music to be discovered by the masses to create fans who will buy their art. The Internet allows for anyone to put themselves in a position to be discovered, but there are a few key things that must be in place: 1. Create multiple sites. The main ones would be a website, a Facebook page, a Twitter page, and a YouTube channel. 2. Add the necessary info/content to the sites. At a minimum make sure there is music, videos, photos, a bio, and show info. And make sure the metadata is correct and consistent across all sites. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Poor Man’s Copyright”

Emailing or snail-mailing yourself a copy of your music (or other creative work) is what many people refer to as a so-called "poor-man's" copyright. However, the "poor man's copyright" has never been a part of the US copyright law, nor is it recognized by law. Hence, it's not a substitute for formal copyright registration. Technically, a copyright is created under the law when an original creative work like a song is embodied in a fixed format, such as CD or a lyric sheet. However, by taking the extra step of timely registering the song/copyright with the US Copyright Office, the creator gains extra important rights/benefits, the biggest one being the ability to bring a copyright infringement lawsuit for statutory damages which can be up to $150,000 per infringement, plus attorneys fees. None of these benefits apply to a “poor man’s copyright”, so its best to spend a few extra dollars to protect your valuable rights. Ben McLane Esq Benmclane.com

Music Business/Law Tips - "De Minimis/Fair Use vs Samples"

A common myth is that one can sample a “tiny piece” (i.e. de minimis) of someone else’s music without permission. This is not legally correct. When someone samples any portion of someone else's music without proper authorization, it gives rise to a cause of action for copyright infringement. The copyright owner has every right to sue, and if they timely registered their copyrights, the statutory dollar damages could be quite high. If one wants to obtain the rights to sample existing music properly, one has to clear the rights to the music composition copyright; and, if one wants to use the sound recording, then the sound recording copyright has to be cleared as well (both copyrights). This can be a real pain and sometimes expensive. As for the related concept of "fair use," it's a defense that might be valid to defend against copyright infringement, but its difficult to prove. Sampling under fair use must be for the strict purposes of criticism, comment, news reporting, teaching, scholarship, or research. A court will weigh the following factors to evaluate whether there was an actual fair use: (1) the purpose & character of the use (i.e., was it for profit or education?); (2) whether the work been published already; (3) the amount and substantiality used; and (4) the harm done to the original copyright owner by the competing work. Bottom line: do not sample without securing the proper rights first. More often than not, music sampling is not protected by fair use; and even if it is, one still has to pay to prove/defend the argument in court. Best solution: create original music. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Beware Samples In Music"

Uncleared samples are copyright infringement even for free promo uses. The owner of a copyright controls 6 exclusive rights: (1) The exclusive right to reproduce the work; (2) The exclusive right to distribute the work; (3) The exclusive right to perform the work; (4) The exclusive right to display the work; (5) The exclusive right to make derivatives (copies) of the work; and (6) The exclusive right to digitally transmit the work. Hence, if you incorporate uncleared samples of someone else’s copyright into your music - even if you don't plan on selling your music/mixtapes (but just distribute them online/offline for free) - it's still considered copyright infringement. Whether its shared for free physically or online, the law is that only the copyright owner has the right – or to give a third party permission – to reproduce, distribute, and make derivatives of their music. While some new/unknown artists might not get upset if they see that you used an uncleared mashup/mixtape/sampled song or master recording of their music and shared it for free, they absolutely have the right to prevent you from doing so/stop you. Clearly, a famous artist will take action and may seek damages. Bottom line - always get permission to use someone else’s music. Ben McLane Esq Benmclane.com

Music Business/Law Tips - "BMI/ASCAP $$$"

According to Billboard Magazine, the Top 5 "performance" revenue sources for songwriters collected by BMI and ASCAP are: 1. Cable 2. Radio 3. TV 4. Bars/Clubs/Stores 5. Digital Since 2 out of the Top 3 are essentially music being played in shows, films and ads that appear on TV and Cable programs, it only makes sense for a songwriter to pitch his/her music for these types of opportunities. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Synch" License Request

If an artist gets a request to use their music as part of a film (or TV) show, it will commonly be a license for use in a "trailer" only (not the film itself) in any and all media (i.e., TV and Internet). Normally the film company will offer an "all in" fee for both the "master + synch", which means that they want to get a license for both copyrights from the artist and only have to pay one up-front fee. The master use is for the master recording copyright, and the synch license is for the song that is contained on the master (i.e., the publishing copyright). A lot of these companies refer to the license as a "synch" but that really means that both copyrights are being licensed. For this arrangement to work, the artist must own and/or control both copyrights for the master/song to be able to grant the license (i.e., a 1 stop shop). If the artist does not, then he/she cannot agree to the all-in license for both master and publishing and the film company would have to get a license for the copyright side the artist does not control from a third party. For instance, if the artist only owns the master then he/she can only license the master. Of course, if the artist controls the publishing side as well he/she will also get back-end "performance" income from BMI or ASCAP once the trailer plays on TV. Ben McLane Esq benmclane.com

Music Business/Law Tips - Mechanical License/Video

Securing a license to record a cover song from the original song copyright owner (i.e., a “mechanical license”) does not automatically give you the right to make and distribute a music video of your cover. In general, a mechanical license only gives you the right to make, reproduce, and distribute a certain amount of mechanical reproductions of music (i.e., digital, CD, vinyl, etc. – whatever is specified in the license). Period. A mechanical license does not also grant you rights to make a music video of your cover using that song. The right to do so is an entirely separate license called a “synchronization license” which you would also need to obtain from the copyright owner. Hence, if you want to record and distribute a cover song with a related music video, you'll need a mechanical license and a synchronization license as well (or include the synch language in the mechanical license). Ben McLane Esq Benmclane.com

Music Business/Law Tip - "Video As Promo"

It used to be MTV was the only outlet for a video, and if an artist was not signed to a major label forget about it. When MTV became less of an outlet for music, the importance of videos faded away for awhile. Not anymore. These days the Internet is the medium for music videos, and legions of music fans surfing the Net determine if a video becomes popular: YouTube, not MTV, is the new platform/marketing tool to break an artist – signed or unsigned. A video that becomes popular on YouTube often persuades radio to add/play a song, which in turn spurs sales of albums and singles. Moreover, several indie artists have been signed to record deals on the strength of a low-budget video the artist shot themselves and uploaded to YouTube. A few examples of recent artists that used YouTube to get mass media to pay attention are Macklemore & Ryan Lewis with “Thrift Shop” and Robin Thicke with “Blurred Lines”. However, the key is to make a great, compelling video, so it has a chance to set itself apart from all of the bad amateur footage that is out there and go viral. Ben McLane Esq Benmclane.com

Music Business/Law Tips - "Social Media Success Indicators"

For an artist to really know if his/her social media activies (i.e., YouTube, Facebook, Twitter) are generating any kind of success, there has to be some active engagement from the public. The 3 main factors to look for to see if the marketing plan is working and fans are properly responding are: (1) buying product (i.e, downloads or merchandise), (2) repeat purchases, and (3) recommendation of the artist/product to the fan's friends. The key is to sell product or what is the point?; and; in order to sell things, the artist has to first build an audience to sell to via both online - and offline (i.e., performing) - activities. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Manager Beware - Talent Agency Act"

Managers often have no choice but to seek employment (i.e., gigs) for their new clients who are unable to attract a licensed booking agent to handle that aspect of the artist's career. However, in California there is law known as the California Talent Agencies Act [CA Labor Code 1700, et al] whereby only a licensed talent agent is legally allowed to "solicit" and/or "procure" employment for an artist. Of course, most managers are not licensed booking agents. The penalty is severe as a management agreement can be made void and all past manager commissions required to be paid back to the artist. Artist's often use this law to try to get out of a management deal and it can work even if the manager only booked 1 gig. The only safe way for a manager to get around the law is to work in conjunction with a licensed talent agency to help negotiate the deal, but let the agent make the initial call and finalize the deal. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Artist Endorsement Deal"

If an Artist is going to endorse a product or piece of gear, there are several different ways for the artist to benefit. Benefits can include some or all of the below list: (a) An up front monetary payment to the Artist. (b) Promotional posters with Artist image/logo along with the brand. (c) Promotional clothing with Artist image/logo along with the brand. (d) Promotional stage banner. (e) Reciprocal website links on the brand website and Facebook page. (g) Free product/gear. Ben McLane Esq. benmclane.com

Music Business/Law Tips - "Joint Venture"

What is a joint venture? Its basically when 2 or more parties decide to work together on the launch of a new project and split the profits. A recent joint venture example that really explains how it works is between Warner Music Latina and Telemundo Media to promote Latin artists. Warner Latina and Telemundu have decided to work together to identify, sign and market new and established Latin talent. Warner will focus on the music side (i.e., picking songs and producing the records). Telemundo will promote the acts on its media platforms (i.e., TV and online). The partners will share equally in all related revenues, including record sales, touring and sponsorships. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Record Deal Term"

Most record deals have a "term" based on delivery and release of an album(s). In other words, the Artist does not move to the next period until an album has been released. The language might say something like: "The initial term shall end the later of (a) 12 months from the date of the agreement, or (b) 9 months from the release of the 1st album". The problem is that the term could end up being "open-ended" or indefinite if for some reason the album is never released or it is delayed. Hence, one should always add a provision that under any circumstance, a period should never exceed 18 months (or words to that effect) just to protect against a worst case scenario/so the Artist does not get stuck forever in a bad deal. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Licensing Music = Money"

There is a surefire method to get paid from music. Despite all the so-called doom and gloom associated with free downloads, paltry streaming royalties and empty venues, the demand for music in film, TV, commercials, the Internet, radio, and other forms of media is increasing daily and globally. In TV alone there are countless channels clamoring for content, and the number of cues contained in one reality show episode can be numerous. This is great news for music creators/rights holders (both the song and master copyrights), because that means cold hard cash is being paid to the music creator/rights holders for providing the music that drives these shows. Monies can be earned either on the front end, the back-end from performance, or often from both. Moreover, there are really no barriers to licensing music. The door is open to all ages, creeds and colors. In the licensing world – unlike the “Top 40” game - all anyone really cares about is the music; not how old someone is, what they look like, where they live, who their father is, or how many friends they have on Facebook. The link between the music creator/rights holder, the media outlet and the compensation, is known as a “license”. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Sampling Defense"

Although its always advisable to gain permission from copyright owners before sampling their music since in general even taking small snippets can be considered infringement, there are a few possible arguable defenses for not having to clear a sample. One would be "fair use", where the copying serves some sort of benefit to the public (such as education, criticism, parody or satire). The other would be "de minimus", where the copying is so tiny one could never tell the original source of the music. Again, these defenses are just that and they may not fly - especially if the sampler is making money off of someone else's work. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Video Game License Fees"

When you license your music for inclusion on a video game, the royalties and fees depend upon how famous you are, how famous your song is, the prior history or anticipated sales of the game, who the game company is, the bargaining power of the parties, and the needs of the video game producer, artist and/or songwriter. Some agreements provide for an actual royalty but most provide for a one-time buy-out fee per song regardless of the number of games actually sold or how many times the game is played. There is no standard per se, but per game royalties range from 8 cents to 15 cents per song, and buyouts range from $1 to over $25,000 (with the average being between $2500-$5000). Ben McLane Esq benmclane.com

Music Business/Law Tips - "Business Formation"

Once an artist gets serious about a career and starts to make money, its wise to have a professional business structure. There are several options, and the factors involved in which entity to choose are normally based on liability protection, taxes, complexity of the artist's situation, and set-up cost. The 4 most common types of business forms are: (a) sole proprietership, (b) partnership, (c) LLC, and (d) corporation. The differenses are beyond the scope of a short article, but a good attorney or accountant can help the artist make the correct choice. In genera however, at first a sole proprietship works OK for a solo artist and a partnership for a band (and can be converted to an LLC or Inc. later once the career progresses). Ben McLane Esq benmclane.com

Music Business/Law Tips - "Marketing and Promotion"

Since there is normally a direct correlation between awareness of a record release and sales, it is important for any product commercially released to be backed by as much marketing and promotion as possible. This normally means advertising and publicity in areas like radio, online, TV, press, in-store promotions, etc. At a record label there are marketing and publicity departments that handle this. If an artist is indie - and even if signed - they may have to do some/all of this themselves to reach fans. It does not make sense to spend the time/money to record a record and then not properly promote it. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Tour Support"

Artists normally sell more product when they tour and selling product is really all that record labels care about, so sometimes a record label will financially support a tour if an artist is new and not breaking even on the road yet. This is called "tour support". Tour support money can help defray touring related expenses such as gas, food, food, lodging and crew. This would be considered an "advance" that is generally recoupable against the artist's royalties. Ben McLane Esq. benmclane.com

Music Business/Law Tips - "DIY Pitching Music"

Clients I have that have been able to place music, they are done it these ways: (1) developed a relationship with a music publisher who would pitch, (2) developed a relationship with a manager who would pitch, (3) developed their own one on one connections with labels, artists, managers, publishers, producers, A&R reps, etc by going to lots of music conferences, etc and making their own one on one connections. Of course there are third party services like Taxi that help to get that initial break and then once you have a cut or a hit its easier to meet the movers and shakers. Ive have found that with Facebook you may be able to track down and artist or producer A&R person or music publisher or other record exec that works with the kinds of acts that might cut your tune(s) and send them a pitch direct. If you are BMI, ASCAP or SESEAC and know a rep inside you might also want to get their opinion/suggestions as they have the inside track on a lot of projects looking for songs. Ben McLane Esq benmclane.com

Music Business/Law Tip - "Recording Advance"

A "recording advance" is the money paid by a record label to/for the benefit of artist used to cover the costs of recording a record (i.e., studio rental, producer, mixer, session musicians, engineer, equipment). Normally, this amount would be recoupable against the artist's future royalties. Budgets can range from a few thousand to a million dollars. Ben McLane Esq benmclane.com

Music Business/Law Tip - "Copyright Reversion"

In a publishing/songwriter agreement, try to negotiate for "reversion" of copyright after a certain number of years and/or if certain criteria are not met by the publisher (i.e., no licensing). Also, try to make sure that the contract does not say that the songs are "works made for hire", as that might disallow the right to "reclaim copyright after 35 year rule" in the Copyright Act for songs written from 1978 on. Ben McLane Esq benmclane.com

Music Business/Law Tip - "Songwriter Key Income Streams"

The 3 primary income streams earned by a songwriter are as follows: 1. Mechanical Royalties: Currently 9.1 cents per song included on a CD or download. 2. Performance Royalties: From play of the song(s) on radio and TV. Amount varies depending on the volume of play, how many listeners, etc. 3. Synchronization ("Sync") License Fees: From the usage of a song in TV, film or commercail (i.e., in conjunctioi with a visual image). Amount varies depending on the company licensing, how popular the song is, how long the song is used in the spot, etc. Ben McLane Esq benmclane.com

Music Business/Law Tip - "Buy Beats"

It is possible to buy or rent beats to incorporate into your music. There are companies/producers that will sell or license their pre-existing beats to you. There are 2 basic ways to handle this: Buy Out Exclusive Rights: This normally means you have to "purchase" the beat where you have it exclusively for any and all uses without restriction and never have to pay any more to the original owner/creator. Giving credit to the original producer/writer may or may not be a part of this deal. This is preferable so you don't have to worry about having to account or ask for permissions in the future. License: This may or may not be exclusive, and only lets you sell a certain number of units containing the beat or use the beat for a limited purpose. There may or may not be a back-end royalty due, and right to edit may or may not be granted. This is not the preferable way to obtain a beat, but its normally cheaper on the front end. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Kickstarter Basics"

Kickstarter is a platform where Creators run campaigns to fund creative Projects by offering rewards to raise money from Backers. By creating a fundraising Campaign on Kickstarter, the Project Creator is offering the public the opportunity to enter into a contract with the Creator. Kickstarter is not a party to the agreement between the Backer and Creator (all dealings are solely between the parties). A Project is defined as something that has a clear goal, like making an album, a book, or a work of art. A Project will eventually be completed, and something will be produced by it. A Project is not open-ended. Starting a business, for example, does not qualify as a project. It is the Project Creator's responsibility to complete the Project. Normally, the motivation for a Backer to invest is that they are rallying around their friend’s Project, supporting someone they have long admired (i.e., a fan), or are inspired by a Project's rewards: e.g., a copy of what's being made, a limited edition, or a custom experience related to the project (i.e., a date). Kickstarter's Terms of Use require Creators to fulfill all rewards of their Project or refund any backer whose reward they do not or cannot fulfill – Creators have a legal obligation to do so. Also, a Creator shall not, and shall not permit any third party using its account to, take any action that it knows is false, misleading, or inaccurate, or is deceptive or fraudulent. Essentially, a Creator has to make a good faith effort to complete the Project and fulfill. If problems come up, a Creator is expected to post a project update (which is emailed to all Backers) explaining the situation. Sharing the story, speed bumps and all, is crucial. Most Backers support Projects because they want to see something happen (i.e., completion of an album) and they would like to be a part of it. Creators who are honest and transparent will usually find Backers to be understanding when plans change. Sometimes the execution of the project proves more difficult than the creator had anticipated. If a creator is making a good faith effort to complete their project and is transparent about it, backers should do their best to be patient and understanding while demanding continued accountability from the Creator. If the problems are severe enough that the Creator cannot fulfill their Project, Creators need to find a resolution. Steps could include offering refunds, or other actions to satisfy Backers. A Project Creator is not required to grant a Backer’s request for a refund unless the Project Creator is unable or unwilling to fulfill the reward. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Mix Tapes Issue"

Putting up a free mixtape at websites like DatPiff.com can lead to potential infringment lawsuits by the original artists that are being sampled without permission/license. Heres why: Even thought the mixtape is not being sold and no direct money is being made per se, the claim would be that the mixtape artist is still profiting/benefitting indirectly from the unauthorized sample by giving away the mixtape to build a fanbase that would later buy the mixtape artist's albums, concert tickets and merchandise (but the original artist who is being sampled gets nothing). Best to clear all samples on free mixtapes to avoid any problems. Ben McLane Esq benmclane.com