Music Business/Law Tips - "SoundExchange"

Recording artists and labels now can get paid "digital performance royalties" from satellite radio, internet radio and cable radio play. SoundExchange is an organization that collects the above-named digital performance royalties for performers and labels. If an artist or label joins SoundExchange and lists the records that have played on/released, SoundExchange will collect and distribute these royalties. Note this has nothing to do with songwriter performance income - that is collected by BMI, ASCAP and/or SESAC. One does not have to be a songwriter to be eligible to receive SoundExchange income! But to get your share you must register at soundexchange.com Ben McLane Esq benmclane.com

Music Business/Law Tips - "Leaving Band Member"

If a there is a leaving band member, these are some of the key points to cover in any release/waiver document: - Does the leaving member maintain any ownership in the Band, or its assets (e.g., trademarks, copyrights)? - Does the leaving member maintain any past, present, or future revenues generated by the Band? - Are there any other other claims whatsoever? Ben McLane Esq benmclane.com

Music Business/Law Tips - "Manager v. Attorney"

As for whether an artist should seek out an attorney or manager first, it’s a case by case thing. However, I have found that since most of the established/experienced managers don’t want to get involved until the right tools are in place for them to do their job properly (i.e., record label support, touring history, fanbase, etc.), it may be more likely for an attorney to get involved earlier in the game to help the act get in the position to attract the appropriate manager (along with doing all the boring legal stuff). In my opinion, the act should wait to add a manager to the team until there is a reason to do so/the right person or company comes along, and not rush to lock mom, dad, uncle or buddy into that role, as that may actually do more harm than good down the road/scare away a record label who would want to make sure that the act has professional representation that can be a partner in breaking an act. Labels have no time to teach anyone the business or absorb stupid mistakes by the act or its management these days. They are risk averse. As an aside, I think connecting with a booking agent early on for many acts might be more important than a manager or attorney since touring and creating a fanbase seems to be the primary initial building block upon which all other career elements are based. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Trademark Primer"

An artist's stage name (or pka) is a trademark/servicemark. Active artists normally need the trademark in the category of live shows (class 41), records (class 9) and merchandise like t-shirts (class 25). Class 41 will generally suffice if the artist is on a budget. Someone else using the same name that is not an artist like a restaurant is in a totally different category that should not conflict with the artist, so the artist should be OK to use the name so long as the artist does not try to start a restaurant under that same name. Go to uspto.gov for how to file a trademark. Or hire an attorney to assist. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Parody"

For instance, you have written a parody of a John Mayer song, which does not substantially change the original music of this famous song but incorporates humorous new lyrics throughout (ala Weird Al). I note that this is not a “sample” in that it is a whole new recording. It is also important to note that there are 2 copyrights at issue here: (1) The composition copyright (song) which John Mayer's publisher administers for him [this is the “c” in the circle], and the (2) sound recording (master) of your parody version which you own [this is the “p” in the circle]. You only have to be concerned with the "c" copyright. Some quick background why Weird Al, et al generally tries to obtain permission to do a parody up front just to be safe since the world of fair use/parody is a slippery slope as it could be considered a derivative work, and each situation is case by case and not always legal per se (see famous cases e.g., 2 Live Crew case from the 80s where the final judgment of the appeals court prevented the parody of Roy Orbison’s “Pretty Woman” by 2 Live Crew on the grounds that it was blatantly commercial and damaged the market for the original, and the Catholic Priest’s re-done version of Jesus Chris Superstar from the 70s where the court would not allow it either). On the other hand there have been numerous other cases which allowed the parody. Under the Copyright Act of 1976 (Section 107) the court will weigh several factors to allow or prevent a parody (or any fair use of an existing copyright): 1. Is it for commercial or non-profit use (i.e., education, news, charity, etc)? 2. What is the nature of the original work (i.e., was it a hit song)? 3. Is the parody a close copy to the original (substantially similar) or does it just use bits a pieces of original? 4. Does it damage the potential market for the original or somehow diminish or tarnish the value of the original? Although for practical purposes you can make and release this parody and never obtain permission or share profits with John Mayer since its really under the radar, there is a chance if it took off you could possibly get sued for infringement, and then it would be up to the court to decide whether your parody would be allowed without permission by viewing all the factors set forth above. I think its down to a balance of whether your version would damage the original version due to massive sales (since clearly you are doing this for profit). Since getting permissions is a hassle and time consuming and sometimes expensive, you may just want to put out your version and then if someone ever comes after you get the permission then (and you could claim in good faith you did not know you needed it since you thought a parody was excepted which is a valid argument due to the murky nature of this issue), or worst case they would probably just tell you to stop selling. Ill have to leave that to you. If you do want to be 100% safe and seek a permission or give a courtesy notice, you can find out who administers famous song by checking with BMI.com, ASCAP.com or Harryfox.com. Ben McLane Esq benmclane.com

Music Business/Law Tips - "Work For Hire" Demo

If you hire a producer and musicians to help you create a demo you are singing on, you need anyone who is making a contribution to the masters (i.e., producers, mixers, engineers, session musicians) to sign a form saying they are working for you on a "work for hire" basis and that you own and control the masters 100% without restriction (so you can pitch and license or transfer/sell the masters freely without any third party claims). Normally someone would sign a work for hire form because you have compensated them in some way like a fee, royalties on sales, and/or a credit.

Music Business/Law Tip - "Sample Clearance Issues"

If you want to use a "sample" of someone else's song in your new song, you will need to approach whoever owns/control the sampled song to get permission/clearance. The following are some of the issues you will need to address: Is your new song an independent release or via a label? What is the expected release date of your new song? Will your new song be for sale or promotional only? How many copies of your new song do you plan to press/sell (physically or digitally)? Do you also plan to have your new song included in video, TV, film, commercials? What territory/ies do you plan to release your new song? And of course they will want to hear a copy of your new song so a "split" of writers/owners share in the new song can be sorted out. Ben McLane Esq benmclane.com