You might be wondering why does a musician, writer or producer need a lawyer? Essentially, a music lawyer is part of the team, advising on legal issues and helping to guide the business aspects of a career in collaboration with other members of the team such as the manager and accountant. Nonetheless, knowing when to appoint a lawyer can be a difficult decision. With that in mind, this article will run through five very good reasons why you should consider doing this sooner rather than later.
Protecting your brand
One of the first steps in your career is to create a stage name and possibly a logo. This is your brand. But have you considered how you protect this? How do you stop someone else from copying your name? If a friend came up with your name, or designed your logo, have you considered who the owner is? A music lawyer can not only advise you whether you own the rights to your brand marks but also advise you on the best course of action to protect them.
Generally speaking, you have two options available to you:
- You can either trade mark your name; or (2) rely on the law of “passing off”.
A trade mark is a badge of origin and is used to distinguish one person’s goods or services from another’s. A trade mark is a registered right. This means, provided your mark name meets certain criteria, you can register your trade mark for a fee. Once registered, you can control how others use your marks.
However, trade marks are expensive and not always the best option for up-and-coming musicians who may be strapped for cash. The alternative is to rely on the law of “passing off”. Passing-off is an unregistered right and comes into play when one party takes unfair advantage of another’s “goodwill” - passing their goods/services off as yours. If you can prove that your marks have the necessary goodwill then you can exclude all others from using your marks without the need to register a trade mark.
Which one of the above to rely on will depend on your circumstances. You also need to manage your other associated intellectual property, for example, the copyright in your artworks and photographs. If you are serious about building a brand, protecting it should be a consideration from day one.
Clearing samples
With the popularity of samples soaring, it’s now more important than ever to ensure that you are legally allowed to use a sample by clearing it correctly. I’ve seen artists and producers get stung years down the line for using uncleared samples. At best, these disputes can be resolved amicably with a payment to the person whose sample has been used. At worst, a dispute for an uncleared sample can lead to bitter court battles costing thousands of pounds.
You may not be aware, but all sampling is actually an infringement of copyright unless permission of the copyright holder has been obtained. You also need to understand that there are two copyrights in any sample: (1) the master recording copyright; and (2) the underlying song or publishing copyright.
So how do you clear a sample? The answer is through a licence. Some websites offer both samples and licences for the selected sample. Always be sure to check the licence as this will set out: (1) exactly how you can use it;
- If anyone else can use it; (3) how it must be credited; and (4) whether royalties are payable.
However, what happens if the sample you want to use is not on a sample website or does not come with a licence? You can either use a sample clearing website, or, you will need to contact the rights holders (most likely the record label and publishing company) and put in place a licence to use the sample. Some record labels and publishing companies have licensing departments you can negotiate with but negotiation is by no means straightforward. A music lawyer can help you navigate the complex landscape here and strike a suitable deal.
Setting out your relationship with your manager
A management contract is one of the most important and most personal contracts you will ever sign during your career. Your manager might just be the most important member of your team; the one to guide you through your career and take you to the next level. Needless to say, you must make sure you get the contract right and you obtain independent legal advice.
A music lawyer will help protect your interests, making sure, for example, that you’re not paying your manager more than you should be and that the limits on their authority to act on your behalf are clearly set out; you don’t want to find that you’re contractually bound to give a live performance in a far flung place for a low fee because a manager signed a contract on your behalf. Whilst you will be on good terms with your manager when entering into a deal, have you thought about how you can get out of the contract if your manager doesn’t turn out to be everything you hoped for?
Remember, a management agreement is an agreement based on trust and confidence and a good agreement will be mutually beneficial for both parties, so it’s worth getting one in place and having a music lawyer help you negotiate it.
Knowing and understanding your intellectual property
Each track you make includes several copyrights. For example, a song will attract musical copyright in the music and a literary copyright in any lyrics. If you record that song, a separate copyright exists in the sound recording. Things get more complicated if your track features additional performers or you engage a producer or mixer to work on the recording as they may own their own rights in your track.
Therefore, you should ensure you have everything set out and ideally agreed in writing before you start work on a track so you can use your work without the need to negotiate with many different people afterwards. If you are a solo artist or producer, this means ensuring you have received an assignment from those collaborators on your track. If you are part of a band, this may mean putting in place a band agreement to ensure you know exactly who owns what.
Intellectual property rights are complex but ownership should always be a consideration before you begin making a track. As with samples, you don’t want your track to finally take off only for collaborators to insist on a share if that is not what was intended from the outset. A music lawyer can make sense of this complicated patchwork of rights and advise you on the customary industry parameters within which you can agree terms with collaborators,
Closing the deal
It may come as no surprise by now, but the response from many artists when they enter into a contractual dispute is “the parts I understood seemed fine”, “they explained it to me over a few drinks, it was very relaxed” or “they were my friends, I thought it would all be OK”.
While negotiating (and certainly before closing) any deal, whether a written contract is involved or not, whether it is big or small, you should seek independent legal advice. Whilst it is flattering to receive recognition from a record label or publishing company, you need to be aware that you are entering into a legally binding agreement. Music is understandably your passion, but it is also a business and your source of income. Never sign anything straight away and always keep in mind nearly everything is negotiable.
The above five reasons for taking legal advice from a music specialist lawyer are really only the tip of the iceberg. The music industry is evolving constantly. New deals are being done all the time including a wide variety of rights and income streams taking in live performance, writing, recording, merchandising, endorsements and a whole lot more. A music lawyer is invaluable to ensure that you get off on the right foot at the beginning of your career and that you are guided and protected as the business continues to change and your career develops.
Pete Bott
Senior Associate, Sound Advice
