Music Business/Law Tips - "Cover Recording Tips"

If you are releasing a straight-up cover version (your own interpretation) and re-recording all the audio from scratch, you simply need a mechanical license from Harry Fox (harryfox.com) to release the cover. However, if you want to actually "sample" the original recording (all or in part) and sing over it, that is more complex as you have to get permission/license from whoever owns the original master and the original songwriter/publisher(s) (and sometimes it is hard to find those party/ies if it is an obscure recording, or the originator may demand outrageous sample license fees for consent). Hence, it is usually better to just re-do (i.e., make a sound-alike/copy) the sounds you want, and not have to deal with sample clearances - and with today's technology that is quite possible; just don't do a verbatim rip-off. Ben McLane Esq benmclane.com

Music Business/Law Tips - "5 Steps to a Record Deal"

In my experience these 5 steps give a recording artist the best chance to get a record deal: 1. Have a demo with at least 3 hit radio songs; 2. Have a unique/marketable image and name; 3. Have an entertaining live show; 4. Have a strong social media presence (YouTube, etc); 5. Include the selling points listed above into a "package" that is easy for the industry to check out via computer (i.e., website or EPK link). Ben McLane Esq benmclane.com

Music Business/Law Tips - "Accounting Transparency"

Recently The Orchard - which now also releases indie films as well as music - set up a new "transparent" form of accounting that to date has been unheard of in the film business (based on all the "net profit" lawsuits over the years on why no one is paid on a big hit film). The new model allows filmmakers to see the revenue and expenditures from the beginning to the end of any film that the company acquires or distributes and the bottom line net profit. Now filmmakers can see in real time the revenues (e.g., ticket sales, streams, cable) and costs to be deducted (production, distribution, marketing). According to The Orchard this new model is set up to let the parties have a better working relationship of collaboration/trust and hopefully will prompt the filmmaker to cooperate with promotions, etc., and so that everyone understands the reality of the costs versus benefit so that all parties can better project the long term outcome. We can hope that this type of mentality will also spill over into the music business where historically there has also been an information gap that has led to many unhappy results. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Brand v. Artist"

Trademark law seeks to prevent consumers from being confused. Recently, some rappers have incorporated the luxury brand names "Burberry" and "Rolls Royce" into their artist names and related imagery. Burberry and Rolls Royce objected, alleging that the use of their marks will cause consumers to mistakenly believe that the rappers are affiliated with, endorsed/sponsored by, or somehow connected to the brands, and the use of offensive language in the rapper's music could diminish the value of the brands. Because either the rappers changed their names or did not put up a legal challenge, the brand's arguments won out here. However, because of potential free speech or no confusion arguments - is it really this black and white? For instance, in 2000, Mattel sued MCA Records for pop group Aqua’s use of the Barbie trademark in their song and video for “Barbie Girl”. After a lengthy battle, the court found that Aqua’s use was not confusing because the title of an artistic work was viewed differently than a commercial product. Clearly, trademark law is a murky and a dangerous area to tread lightly. Bottom line probably better to come up with a unique name with no potential conflicts. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Infringement - Statutory Damages"

The US Government is evaluating the Copyright Act to see if it needs to be updated to keep in step with the digital age. One of the areas it is thinking of revising is the "Statutory Damages" clause when someone infringes a copyright. The current standard per-work amount of statutory damages is set by Congress at $750-$30,000 per infringement, with an increased ceiling of up to $150,000 where infringement is found to be willful. However, to try and make awards more fair and not random - especially since with the Internet there are lots of cases of "innocent infringement" whereby users do not really know or are ignorant - the task force has recommended adding a list of factors for courts to consider when picking a number from the statutory range for an appropriate damages award (and perhaps making a new lower minimum): (1) The plaintiff’s revenues lost and the difficulty of proving damages. (2) The defendant’s expenses saved, profits reaped, and other benefits from the infringement. (3) The need to deter future infringements. (4) The defendant’s financial situation. (5) The value or nature of the work infringed. (6) The circumstances, duration, and scope of the infringement, including whether it was commercial in nature. (7) In cases involving infringement of multiple works, whether the total sum of damages, taking into account the number of works infringed and number of awards made, is commensurate with the overall harm caused by the infringement. (8) The defendant’s state of mind, including whether the defendant was a willful or innocent infringer. (9) In the case of willful infringement, whether it is appropriate to punish the defendant and if so, the amount of damages that would result in an appropriate punishment. Perhaps the Law will evolve - wait and see. Ben McLane Esq benmclane.com

Music Business/Law Tips - Streaming Only Landmark

Last week the album "Coloring Book" by the indie artist Chance the Rapper become the first album ever to chart on Billboard entirely from streams. The album was not made for sale on iTunes for download or in CD format for retail stores (with apparently no plans to do so). It was posted online as a "streaming exclusive" on Apple Music's streaming service and compiled enough streams in 1 week to equate to 39,000 equivalent album unit sales (1500 steams = 1 album sale according to Billboard). This was good enough to debut in the Top 10 of the Billboard Album Top 200 Album Chart. After a 2 week exclusive streaming window via Apple, it will also be available on other streaming services like Spotify. Note Kanye West's latest album from a few months back "Life of Pablo" charted at #1 on Billboard almost entirely from streams - but it was also available for sale on West's website (not at iTunes or other stores) - so due to its limited availability it was publicized as a streaming only release even though technically it was not. This seems like it will be a continuing trend - especially for indie releases. The question is - how does an artist make money off streams? Right now, streaming seems more like a promotional device to build a fan base who will pay for show tickets, merchandise, and lead to synch licenses, etc. - all which do pay. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Buy A Beat"

A big business for up and coming producers is to create and sell a musical "beat" to an artist or label who can then add lyrics or a rap on top or remix it. There are a few ways this can go down: 1. Buy Out: For a fee, the producer sells his rights (work for hire). This means he/she may not even get a credit. Unless the check is large, it's always better to stay on as a credited writer/producer and get back-end royalties from sales/streams/licensing since you never know what track is going to blow up. 2. License: The producer retains his rights, but lets a third party artist use the beat in a new song (usually exclusively for a period). There may be an up-front fee involved, but always a back-end royalty and credit. There is normally a written agreement when someone buys/sells a beat. The producer needs to cover fees, credits (as a producer/writer) and royalties. The Artist or buyer needs to make sure he/she can use the beat without restriction in all media, the beat should be original (no samples/infringements) and has not already been given to anyone else. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Playlist Promotion (Playola?)"

Playlists on the major streaming services such as Spotify and Apple Music have become an important new form of "charts", as this is where fans and music supervisors are starting to gravitate to discover music as well as where traditional radio stations are looking for which songs are popular enough to add. As such, record labels now actively try to get their newly released singles to appear on such playlists. This is known in the industry as "playlist promotion". Essentially, the old-school "legal" promotional methods that were once (and still are) used by labels to get songs added to radio have now carried over to this new medium. Therefore, it appears that if a label or artist can afford to pay a middlemen digital marketing firm (similar to indie radio promoter) who will - via their relationships with curators of the various playlists - influence song placements and chart positions on the playlists, then the true indie artists will again be squeezed out of the mass exposure picture just as they always were before and will have to rely on grassroots to break. ("Meet the new boss/same as the old boss." [lyric by P. Townshend]) Ben McLane Esq benmclane.com

Music Business/Law Tips - "7 Year Statute"

Recently, Rita Ora filed a lawsuit against her label Roc Nation to get out of her record deal based on the so called "7 Year Statute". In California, this Labor Code stipulates a court cannot enforce a personal service contract after seven calendar years from when the deal began. Ora signed the contract in 2008. Her underlying gripe is that she claims the label has neglected and failed to properly promote her. Of course, Roc Nation disputes this and argues they have spent millions on branding her. The problem with invoking this statute is that there a lack of solid case precedents in music. Although Olivia Newton-John successfully sued MCA Records for violating the law in the late Seventies, thereafter the recording industry lobbied the California legislature to establish rules allowing labels to sue artists for "lost profits" if they didn't fulfill album commitments or other components of their contract, so such a claim can backfire. As such, most record industry disputes involving the "seven-year rule" have ended in a settlement or a renegotiated deal. Well have to stay tuned to see what happens. Ben McLane Esq benmclane.com

Music Business/Law Tips - Gear Endorsement Deals

With the NAMM (National Association of Music Merchants) Convention quickly approaching, many musicians either already have - or will obtain - instrument and other musical gear endorsement deals, and will hanging out there either performing for or networking with the equipment suppliers that will be showing off their wares to buyers and the industry. Normally, a musician would need to have some level of notoriety or fan base either from releasing records, touring, and/or having an online presence to secure an endorsement deal (but not always). The terms of such a deal can vary, but unless the musician is already a superstar, the basic deals points are the following: (1) Give the musician free product(s) or product(s) at cost (money only if a big name); (2) Musician must promote the product by using the gear at shows or on recordings/videos, and post images online using the gear; (3) Normally a term of a year/ few years where the musician can only formally endorse that particular product. It's always best to endorse product that one already likes and will be proud to be affiliated with. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Graphic Artist Agreement"

If a singer/band is going to hire a graphic artist to create an album cover or a logo for it, keep in mind that under copyright laws designers normally retain the rights to what they create, unless the singer/band has something in writing with the designer to the contrary. It is advisable that the designer sign a short work for hire agreement whereby in exchange for a fee (or other consideration), the designer transfers ownership of all rights, title and interest in the logo or artwork to the singer/band. Without this, the singer/band may not have the freedom to use the artwork as it wishes without restrictions (on merchandise, etc.), and/or will owe the designer additional fees or royalties down the road. Another option is to obtain a broad rights license from the designer, but that is never as good as ownership. Ben McLane Esq benmclane.com