Your album is coming out, and you want to do everything you can to bring awareness and get fans to hear your music. So you decide to make a music video. It's a great form of publicity and fans like to have a face to go with the name. And, let's face it, it's one of the most fun parts of making music anyway! So how do you do this and make sure that you're in control and own the final product to do with as you choose?
Recently, I was approached by a friend to look over a contract she had been given by a distributor. It was not a long or complicated contract and not written to deceive. It clearly stated that, in exchange for 3-year exclusivity, a $500 ‘set up fee’ and 20% of net profits, they would handle the digital distribution of her single. Sounds simple enough right?
The main sticking point for me is that they were only willing to handle digital distribution. It is not necessarily a problem to only distribute your songs digitally, and in the modern era of music, that will be your most wide-reaching and common form of distribution. It is not unusual these days (I sound like my mother!) for people not to print physical CDs or vinyls at all. The problem was the extortionate price they were changing for this service. Digital distribution is not a difficult task. Thousands of independent musicians handle this themselves – myself included. There are services such as Tunecore and CD Baby (amongst others) that facilitate this. On Tunecore (as this is the service I use and so know the most about, although there are others for similar pricing) it costs $9.99 to distribute a single and $29.99 to distribute an album for one year to over 80 online stores and radio services, including iTunes and Amazon. In my opinion, the task of doing this is neither difficult nor time consuming enough to warrant a set up fee of $500 and following costs of 20%.
That being said, if the distributor was willing to distribute physical CDs and get them into stores (although the number of stores selling physical CDs is getting fewer and fewer) this may be worth considering. Getting physicals out there is verging on impossible for the independent artist. Sure, you can sell copies at your gigs, maybe even be lucky enough to get them into some local stores or sold at music-friendly coffee shops, but to get them into a national store like, for example, Target, is impossible. Having your physical CD sold in a store like that is publicity you can’t buy. If a distributor were offering you this, then they would be worth considering. Obviously their costs would be a lot higher and you would have to have the contract checked by a shark of a lawyer to make sure there were no hidden rotten eggs in there that would end up costing you down the line. But in these circumstances, it would be likely that a distributor would be well worth your while.
For digital distribution however, I honestly recommend (and this is just my humble opinion) considering handling it yourself. Unless you find the task really daunting, confusing, or you do not have an hour that you could dedicate to it (in which case I would think carefully about whether being an independent musician is right for you), there are better ways to spend the $500. Spend it on printing physicals to sell at gigs, or perhaps a good bit of publicity to let people know your songs are out there. But don’t give it away to people taking advantage of independent musicians who think they need help to get their music out there. All you need is a little information on how to proceed by - and for - yourself.
The moral of this story is make sure you read all your contracts carefully and be sure of exactly what you’re getting, and have to spend to get it. Hire a lawyer if you need to. Don’t trust what anyone tells you in conversation, that has no relevance to your agreement with them. In the event that there is a dispute, the only thing that will matter is what’s written in the contract.
Remember, the music business is still a business, so make sure you’re protected!
The band name. The most difficult part of starting a band. It’s easy for all these solo acts that just use their own name. But if you don’t want to use your name, or if you’re a band, you have to come up with a different name that you’re happy representing you. It’s going to be your calling card, how people know you, your brand. Once you have a following, it’s difficult to change your name, so you spend hours thinking about it, trying out different things, making words up, checking as best you can that no-one else is using it and you’ve finally settled on your name. Now how do you make sure no other band starts using the same name as you?
As I covered in my last post, when a person creates something, they own it. Good old Intellectual Property (IP) Law. And this goes for your band name too. You create it (even if it’s a commonly used word), you create your brand, you own it. But what if down the road you realize that there’s another band out there, all the way over the other side of the world, that’s using the same name? Who gets to keep it?
Generally speaking, the band that can prove, through legal channels or otherwise, that it was using the name first owns it. And using it first could be by as little as a week, or even a day. Finding this out and then fighting over it can involve lawyers and litigation and can be costly and time consuming. Not to mention the cost of having to reprint any CDs, merchandise, changing websites and erasing any use of that name should it turn out you weren't first. Even if you know you had it first, the other band may have a bigger following than you, or be so adamant that they want to keep the name that they force it to a judgment before they’re willing to give it up. So how can you avoid this?
Well it’s never possible to be 100% sure that this won’t happen, but the best way is to trademark your band name. This way you have a definite legal date of when your band name was yours. A trademark is a word, phrase, sound, or symbol that represents the commercial reputation and identity of a product or service in the marketplace. Like, for example, your band name. Start by googling, searching iTunes, Amazon, Reverbnation and various other music sites to make sure no other band is already using the name you’ve chosen. Then head over to the US Patent and Trademark Office website (or your country’s equivalent) and do a trademark search to make sure the name hasn’t been registered in the field you want to use it. This is where it can become difficult to understand and the use of an attorney may be beneficial to you, as the name can have been registered for use in another field and still be ok for you to use as long as this won’t legitimately cause confusion between the two brands. Once you (or your attorney) are sure that there is no conflicting trademark, you can proceed with the registration.
Make sure you apply for your trademark under every category that you want to be covered in (for music, most of these fall within category 041 although some do pop up in other categories, so make sure you’re covered everywhere you want to be). I tend to use the more general category definitions rather than the ones that are extremely specific, (for example just ‘music production services’ rather than ‘music production services in relation to the field of …..”) that way you’re covered with more bredth.
The cost of filing a trademark application is between $275 and $375 (USD) per category, depending on if you file online or by snail mail. You could file the forms yourself, they are not overly difficult, the main sticking point for most people would be identifying your categories. But if you do not feel confident with the process, it is always best to hire an attorney who specializes in this field, and unfortunately their fees will obviously be higher. It can be a costly process, but if you’ve decided that you want to make music your career and you really believe in your band, it’s worth the outlay now not to have problems later.
Remember, the music business is a still business, so make sure you’re protected!
If I’m hiring musicians or vocalists who are not a permanent part of the band to play on my recordings, what do I need to do?
Congratulations, you’ve written a great song (or great album), played it over and over, refined it, figured out how you want it to sound, raised the money and now you’re ready to hit the studio.
If you’re a band then this is much easier as you have a lot of the musicians that you need already at your disposal, and, as they are part of the band, you should already have your pay-divisions discussed and arranged. However if you’re a solo act, you need to hire all the musicians you want to use. If you’re a band, you may still want to hire extra musicians to put a specific instrument or sound onto your record, or perhaps hire professional backing singers to give it that polished sound. Remember, a record is just a recording, it’s not necessarily how you’re going to play your song live every time. You have a lot of creative freedom in the studio. So you audition musicians, take recommendations and rehearse in preparation for the studio. But what do you have to do legally in order to make sure these “outside” musicians aren’t claiming ownership of your recording?
When a person creates something, they own it. This is known as Intellectual Property (IP). The legal definition of IP is an intangible creation of the human mind, usually expressed or translated into a tangible form, which is assigned certain rights of property. This goes for all fields of art and creation, be it drawing, painting, photography and, of course, music. A person’s creation of music includes the style in which they have played or sung it, the intonation used, the volume, the emotion, all aspects of the performance. So, although two people could be singing the exact same line, it can sound completely different depending on how it’s done. That is the creation and performance aspect that causes it to be owned by the creator. Therefore, although you may have written the song, if you have someone else sing on it or play an instrument, they own their performance, especially if any form of improvisation is involved that uses the artist’s own creativity and specific talents, which is usually what you’ve hired them for in the first place. This can give rise to them effectively owning a part of your record at the end. So how can you avoid this?
Every time you hire an outside person to work in the studio with you, you need to have them sign a work-for-hire agreement. This is an agreement that states that you have hired them to do a specific job, for a specific amount of money, and that in exchange for this, you will own all rights to the work at the end. The agreement should contain the project name, date or dates worked, the amount of money that you are paying the musician for their services, and the statement that the musician understands that in exchange for this, you will own all rights to the recordings made on that date and the musician will have no claim for royalties or any further form of payment. One thing that I also like to add into my work-for-hire agreements is a clause allowing the use of the musician’s image and / or name in the promotion of the album. That way, if you take any great behind the scenes photos in the studio, you don’t have to get further permission to use the musician’s likeness in promoting your song or album.
Remember, the music business is a still business, so make sure you’re protected!
Lily Lambert graduated from The University of Hertfordshire School of Law with Honors, and proceeded to be involved in the Entertainment Law field for the next 8 years.
Disclaimer: The information contained in this blog is provided for general informational purposes only and is not intended to be, or replace, legal advice. The law is constantly changing and will differ depending on your location, therefore information contained within this blog may not apply to your location or set of circumstances. Nothing in this blog is intended as a substitute for the advice of an attorney. If you need legal advice, please consult an attorney licensed to practice within your jurisdiction.