If an artist is signed to a label, a video usually will be produced to help promote the release. A video has two aspects: sales tool (i.e., MTV) and potential product (i.e., home video sales). Although a video is mostly a promotional tool, virtually all record contracts require that the artist grant video rights to the label. For contract purposes, a video is treated like a record. Therefore, the concept of recoupment comes into play. Recoupment means that the label will have the right to recoup the costs of the video, usually from all sources of income that the artist might make. As with records, the label will usually initially pay the production costs of the video. There is a strong argument that since videos serve to promote a record, not to generate sales of the actual video, only a part of the costs of the video should be recouped from the artist's royalties. Thus, most labels only require recoupment of 50% of the label's expense for production costs.
At first glance, it would seem that a signed artist would want to demand a guarantee of a as many videos as possible in the record contract. However, the artist must keep in mind that a label will usually spend an average of $25,000+ on a video. Since half of these costs are recoupable from the artist's royalties, a promotional video might not always be the wisest choice. The key is to try and keep the budget low. An artist on a label will also be concerned with creative control. Yet, unless an artist is quite successful, the label generally controls the content and the concept of the video. Finally, it is not reasonable to expect to make a profit from a video. There are rare exceptions (Madonna and Michael Jackson come to mind), but again the reason for making a video is normally to hype a record.
In conclusion, if an artist is unsigned, in most instances a video (with the exception of an internet only YouTube low budget video) is probably not the most practical way to spend money because chances are it will not be seen on mainstream TV channels like MTV. If an artist is signed, although the label will probably insist on a video, the artist should strive to get the budget low so the artist will not owe back as much money to the label.
Ben McLane Esq
benmclane.com
Wednesday, November 30, 2011
Saturday, November 19, 2011
Music Business/Law Tips - "Video" (Part 1)
Video is a subject that is synonymous with the music business today. Essentially, the main purpose of a video is to promote a record and to help build an image for an artist, not necessarily to make an artist money. However, videos can make money for an artist indirectly because a video can increase record sales, merch sales, and help gain fans for shows. An artist can get utilize a video to get bookings, interest a manager/agent, and perhaps get a record deal. This article will discuss video as it pertains to unsigned and signed artists.
If an artist is unsigned, a full blown video is probably not the best use of resources unless: (1) the artist has a great song along with a great visual or story, (2) the artist can afford to produce a professional video, and (3) the artist can have the video broadcast to a wide audience. Traditionally, the best exposure for a video is of course MTV and similar music video sites. However, getting on MTV is next to impossible without being on a reputable label. It is possible to get on local cable programs with a well produced video. Additionally, many syndicated video and talk shows might consider a video by an unsigned artist. Of course, with the advent of YouTube, Vimeo, Vevo, etc., anyone can upload an amatuer or fully produced video on the internet as well since there is no barrier/gatekeeper, and sometimes the video can go "viral" which can acheive the same end result as being on MTV (but without some promotion its like a grain of sand on the beach).
[part 2 next time]
Ben McLane Esq
benmclane.com
If an artist is unsigned, a full blown video is probably not the best use of resources unless: (1) the artist has a great song along with a great visual or story, (2) the artist can afford to produce a professional video, and (3) the artist can have the video broadcast to a wide audience. Traditionally, the best exposure for a video is of course MTV and similar music video sites. However, getting on MTV is next to impossible without being on a reputable label. It is possible to get on local cable programs with a well produced video. Additionally, many syndicated video and talk shows might consider a video by an unsigned artist. Of course, with the advent of YouTube, Vimeo, Vevo, etc., anyone can upload an amatuer or fully produced video on the internet as well since there is no barrier/gatekeeper, and sometimes the video can go "viral" which can acheive the same end result as being on MTV (but without some promotion its like a grain of sand on the beach).
[part 2 next time]
Ben McLane Esq
benmclane.com
Tuesday, November 8, 2011
Music Business/Law Tips - "Union" (Part 2)
As a member of the AFM, one must pay an initiation fee, as well as quarterly dues. However, the benefits are comprehensive. As well as better pay and working conditions, benefits include, but are not limited to: a pension, job referrals, insurance, legal counsel, discounts, collection of unpaid fees, consultation, industry contact information, workshops, etc.
One drawback to being an AFM member is that a person may not work for employers that are not signatory companies. Doing so may result in fines or expulsion from the union. An obvious problem is that many small clubs/coffeehouses and small record companies cannot afford to pay the union minimums. For a musician just starting out his or her career, these smaller outlets are the only supportive showcases for their talents. Many artists work "under the table" and take the risk.
The important question to answer is when, or if, to join the AFM? The best guideline would be for a musician to join the union when he or she has decided to become a full-time professional musician and when there is some reasonable basis to assume that one can survive as a musician.
Ben McLane Esq
benmclane.com
One drawback to being an AFM member is that a person may not work for employers that are not signatory companies. Doing so may result in fines or expulsion from the union. An obvious problem is that many small clubs/coffeehouses and small record companies cannot afford to pay the union minimums. For a musician just starting out his or her career, these smaller outlets are the only supportive showcases for their talents. Many artists work "under the table" and take the risk.
The important question to answer is when, or if, to join the AFM? The best guideline would be for a musician to join the union when he or she has decided to become a full-time professional musician and when there is some reasonable basis to assume that one can survive as a musician.
Ben McLane Esq
benmclane.com
Wednesday, November 2, 2011
Music Business/Law Tips - "Union" (Part 1)
If a person is planning to pursue a successful career as a professional musician (either as a player or vocalist), he or she will eventually have to join the American Federation of Musicians (AFM) which is the musicians' union. There are other music-related unions such as the American Federation of Television and Radio Artists (AFTRA) which represents singers and radio/television talent, and the Screen Actors Guild (SAG) which represents actors; however, the AFM will be the focus of this article.
The AFM is a labor union whose membership is comprised of musicians. The AFM regulates wages and working conditions as well as providing a level of job security to its members. The essential reason the AFM formed was because musicians bargaining as a group would have greater negotiating strength than individual musicians. The AFM is a national union with local charters which have their own specific territories (e.g., AFM Local 47 in Los Angeles). Each local union sets minimum wage scales at clubs and theaters in its own jurisdiction. As an AFM member, a musician is free to negotiate wages above union scale, the musician simply cannot work for less than scale.
All of the major record companies have signed an agreement with the AFM whereby as an employer they promise to hire only union members and to provide at least the minimum pay and working conditions set forth in the agreement. Any music employer signing such an agreement is called a "signatory company". As a member of the AFM, a musician authorizes all employers to deduct "work dues", which are a small percentage of the scale wages, from their pay and to have the dues sent to the local union.
[part 2 next time]
Ben McLane Esq
benmclane.com
The AFM is a labor union whose membership is comprised of musicians. The AFM regulates wages and working conditions as well as providing a level of job security to its members. The essential reason the AFM formed was because musicians bargaining as a group would have greater negotiating strength than individual musicians. The AFM is a national union with local charters which have their own specific territories (e.g., AFM Local 47 in Los Angeles). Each local union sets minimum wage scales at clubs and theaters in its own jurisdiction. As an AFM member, a musician is free to negotiate wages above union scale, the musician simply cannot work for less than scale.
All of the major record companies have signed an agreement with the AFM whereby as an employer they promise to hire only union members and to provide at least the minimum pay and working conditions set forth in the agreement. Any music employer signing such an agreement is called a "signatory company". As a member of the AFM, a musician authorizes all employers to deduct "work dues", which are a small percentage of the scale wages, from their pay and to have the dues sent to the local union.
[part 2 next time]
Ben McLane Esq
benmclane.com
Tuesday, October 25, 2011
Music Business/Law Tips - "Trademark" (Part 2)
If the band cannot afford a federal registration, there are some things which can be done to protect the name. First, do a name search to find out if the name is unique. Google is the easiest, or some large libraries have a publication called (Index To) The Trademark Register. Or, one could check the Billboard International Talent & Touring Directory. Additionally, a person could order a name search report from a professional searching bureau for a few hundred dollars. Such bureaus are listed in the yellow pages on online under "Trademark Consultants." If the name is free and clear, the letters "TM", although unofficial, can be utilized to indicate rights to an unregistered service mark. Finally, the most important thing an act can do is to use the name publicly and consistently.
Assuming the act will seek a federal registration and has done a thorough search, the application procedure basically involves submitting (1) the appropriate application form (online or hard copy), (2) proof of public performance (e.g., advertisement or promo material for the public performance), and (3) the filing fee of approximately $325-375 (subject to change).
In a group situation, it is also important to come to some agreement in writing as to who owns the group name, and what will happen if a member leaves the group. The lack of such an understanding has led to a plethora of lawsuits.
The purpose of this article was to familiarize an artist with the way to protect one of the most important attributes that the public will associate with an act: the name. Since trademark matters can be somewhat complex, it might be wise to consult an attorney who can assist with the search and registration process.
Ben McLane Esq
benmclane.com
Assuming the act will seek a federal registration and has done a thorough search, the application procedure basically involves submitting (1) the appropriate application form (online or hard copy), (2) proof of public performance (e.g., advertisement or promo material for the public performance), and (3) the filing fee of approximately $325-375 (subject to change).
In a group situation, it is also important to come to some agreement in writing as to who owns the group name, and what will happen if a member leaves the group. The lack of such an understanding has led to a plethora of lawsuits.
The purpose of this article was to familiarize an artist with the way to protect one of the most important attributes that the public will associate with an act: the name. Since trademark matters can be somewhat complex, it might be wise to consult an attorney who can assist with the search and registration process.
Ben McLane Esq
benmclane.com
Monday, October 17, 2011
Music Business/Law Tips - "Trademark" (Part 1)
A band contemplating a serious career in the business would be well advised to take the necessary steps to protect its name by obtaining trademark protection. That way, the act will not only be secure in knowing that it has acquired the right to the name, but also the artist will not be sued for infringing someone else's name.
A name used for entertainment services is actually known as a service mark. Although a service mark is akin to a trademark and is governed by the same law, a service mark is used to identify services offered to the public (e.g., live performances by a group). A trademark, however, distinguishes symbols used on tangible physical goods (e.g., a record or merchandise displaying a group name). Neither of the above should be confused with a copyright which instead protects works such as songs and sound recordings.
In the United States, as opposed to some other foreign countries, rights in a group name are usually created by use of the name, not registration. Therefore, the act must actively perform under its name, advertise under its name, and sell product bearing its name to the public. Nonetheless, it is still advisable to register the service mark with the U.S. Patent and Trademark Office in Washington, D.C. This not only allows the use of the (R) symbol which gives notice to the public of your rights, it also will allow an artist to get an injunction and collect damages.
[part 2 next time]
Ben McLane Esq
benmclane.com
A name used for entertainment services is actually known as a service mark. Although a service mark is akin to a trademark and is governed by the same law, a service mark is used to identify services offered to the public (e.g., live performances by a group). A trademark, however, distinguishes symbols used on tangible physical goods (e.g., a record or merchandise displaying a group name). Neither of the above should be confused with a copyright which instead protects works such as songs and sound recordings.
In the United States, as opposed to some other foreign countries, rights in a group name are usually created by use of the name, not registration. Therefore, the act must actively perform under its name, advertise under its name, and sell product bearing its name to the public. Nonetheless, it is still advisable to register the service mark with the U.S. Patent and Trademark Office in Washington, D.C. This not only allows the use of the (R) symbol which gives notice to the public of your rights, it also will allow an artist to get an injunction and collect damages.
[part 2 next time]
Ben McLane Esq
benmclane.com
Saturday, October 8, 2011
Music Business/Law Tips - Taxes (Part 2)
C. Car. Gas, repairs, parking and depreciation are deductible in total. As an option, in lieu of deducting all the car expenses added together, an artist can simply keep track of the mileage and just take the standard per mile deduction.
D. Entertainment. Meals, drinks, etc. are 50% deductible so long as "primarily" business related.
E. Equipment. For an artist, many tools of the trade are deductible. These would include such things as musical equipment, instruments, computer, etc. Moreover, if an artist uses a portion of their home or apartment on a regular basis for business (e.g., practicing, recording, booking, etc.), that portion is deductible as a home office. This means that a percentage of the rent/mortgage and utilities are deductible. For instance, if an apartment has 4 rooms and 1 is used for business, 25%of the rent and utilities are deductible expenses.
The foregoing is only meant to give an artist an overview of potential business deductions. It is advisable to contact an accountant before filing a tax return to confirm that the artist's particular situation allows for these, or other, tax deductions.
Ben McLane Esq
benmclane.com
D. Entertainment. Meals, drinks, etc. are 50% deductible so long as "primarily" business related.
E. Equipment. For an artist, many tools of the trade are deductible. These would include such things as musical equipment, instruments, computer, etc. Moreover, if an artist uses a portion of their home or apartment on a regular basis for business (e.g., practicing, recording, booking, etc.), that portion is deductible as a home office. This means that a percentage of the rent/mortgage and utilities are deductible. For instance, if an apartment has 4 rooms and 1 is used for business, 25%of the rent and utilities are deductible expenses.
The foregoing is only meant to give an artist an overview of potential business deductions. It is advisable to contact an accountant before filing a tax return to confirm that the artist's particular situation allows for these, or other, tax deductions.
Ben McLane Esq
benmclane.com
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