Keeping Up With Entertainment Law Amongst a Changing Music Landscape

In the world of the music industry, the scope of copyright law is often stretched and contorted in an attempt to answer legal issues that didn’t even exist when said copyright law was written. Often, the current law must be interpreted in ways that the writers of the law likely never imagined. For businesses whose main product is music or the use of music, it is important to keep up with the various case law that is being created based on how the courts are ruling on these copyright issues. One way that music business such SadSon Music Group, LLC (the studio of which I happen to be a part) can keep up with the ever-changing landscape of copyright law is to pay attention to the various legal blogs and podcasts that exist on the Internet. I recently reviewed two of these said podcasts, and found some examples that illustrate my point about copyright law.

The first podcast is from the Entertainment Law Update Podcast where several copyright issues were discussed. In the podcast, entitled No copyright, Sherlock?, where entertainment attorneys Gordon P. Firemark, Esq. and Tamera H. Bennett, Esq. discuss a variety of current legal cases. One of the cases that made my ears perk up was one where SiriusXM Satellite Radio is being sued by two musicians who are former members of the band called The Turtles. The Turtles recorded several songs in the 1970’s that are being played on satellite radio stations owned by SiriusXM. Tamera discussed how XM, prior to merging with Sirius, was paying royalties to SoundExchange in order to play pre-1972 songs. Once XM merged with Sirius (who hadn’t been paying said royalties), the new company that was formed no longer paid any money to SoundExchange for the broadcast of these pre-1972 sound recordings. Why are songs recorded prior to 1972 an issue, you ask? Well, February 14, 1972 was when recorded songs began to fall under copyright protection. Prior to that, there is no law to force a radio station or other entity to pay a royalty to a copyright owner. This is an ongoing case, where case law exists both in favor of and against the defendant, SiriusXM, so it will be interesting to see how the laws created in 1972 will be applied to the new technology that is now in place.

A second podcast from Entertainment Law Update Podcast titled 360 deals, rights of publicity, and more discusses the emerging practice of record labels and what is known as 360 deals. A 360 deal is a record deal that allows the signing record label to share profits not only from the artist’s record itself, but also ownership or profit sharing of the artist’s entire career revenues. In California, there is a Talent Agencies Act that exists that says that only a licensed agency can “procure” employment for an artist. There are similar laws in New York and Tennessee (due to Nashville and the Country Music Industry). It is currently a hot issue as to if these 360 deals are in violation of the Talent Agencies Act, because the record label is NOT a licensed agent. Obviously, these laws don’t apply in most states, but the fact that most music industry business occurs in either California, New York, or Tennessee, the legal issues that arise due to the 360 deals will be an important topic to stay current on if one is to be part of the music industry in general.

Suffice to say, if one is to stay current in the legal aspects of the music industry, one must devote time every day to educate themselves about current copyright and other intellectual property issues that surface EACH DAY. This complicated world of entertainment law is even more evidence that any artist or other music industry professional would do well to retain an entertainment attorney (not just any attorney) in order to protect themselves as the legal landscape continues to shift as technology and business practices continue to change.

Copyright Ownership - Why It Matters

Whatever the level of success an artist, producer, or record label has within the music industry, one this is for sure: ownership of rights is a critically important issue. Whoever owns a song or video gets to decide how it’s used, and receives the monetary profits from its use. So obviously copyright law is something in which every budding music artist should fully verse themselves. But most of the time, if not all, it’s still important to consult an entertainment attorney when these issues arise to make sure one is making the correct decision for one’s career. Not doing this could mean the difference between making it big and remaining irrelevant. Below are some recent legal cases that may be of interest for those looking to make a career out of writing, performing, and/or recording music.

Now, let me first put this out there. Prince is my favorite artist of ALL TIME. One of the things that makes him my favorite artist aside from his brilliant artistry is the fact that he’s a brilliant businessman and a ruthless enforcer of his rights concerning his copyrighted material. Even if it’s only 6 seconds of his copyrighted material, which was the case when Prince invoked his right to issue a Digital Millennium Copyright Act (DMCA) takedown notice to the social media app Vine, ordering them to takedown videos that were being shown in their app where Prince’s performance recordings were being used.. More on the story is explained in the following video by Blain Bettinger who is an attorney with Bond Schoeneck & King and author on the Higher Education IP Law Report:

Mr. Bettinger touches on a very interesting point, which is the question of balance between the rights of the holder of the copyrighted material and the right of others to use material in a creative way. He mentions that the DMCA is abused at times, and one might say that Prince is going a bit overboard with asserting his rights in this case. In my opinion, though, he’s not. I’m pretty sure that if I were on the same level as Prince in my success, I would stop ANYONE from using my creations in a way that I didn’t authorize. Even if that use was only 6 seconds.

Now eventually, if a copyrighted work gets old enough and the copyrights expire or are not purchased by someone else, as song (or film) will end up in the public domain, in which time one is able to use it freely without getting copyright clearances. This is called fair use, but even fair use isn’t as simple as one might think. Take for example the recent case involving the song Happy Birthday to You. Would you think, just by taking a guess, that Happy Birthday to You was in the public domain and fell under fair use? Well if you answered “yes”, then you’d be incorrect. Happy Birthday to You’s copyright is owned by Warner/Chappell Music who happily charge $1,500 for the use of the song on screen. That is, they currently own the copyright. There is a pending lawsuit filed by Good Morning to You Productions Corp. that claims that the copyright assertion that Warner/Chappell Music has made all these years is indeed invalid. Read more on the case here.

I’m excited to hear about the outcome of this case, as it speaks directly to the reason that copyright law exists. If you go and read the factual background on the case, there is a long list of dates where Happy Birthday to You was NOT copyrighted by the original authors, the Hill sisters, nor was it copyrighted by the person to whom they sold their song. All this could have been avoided had the song been properly copyrighted in the first place, and the rights of that copyright transferred accordingly. Those who have paid the $1,500 to get the license to use Happy Birthday to You will likely be watching this lawsuit closely, as well as those who’d like to use it in their works. But for now, Happy Birthday to You remains out of the fair use aspect of public domain. So no recording the Happy Birthday to You song in your amateur documentary film that you might get into Sundance. Until this case is settled, Warner/Chappell will likely still want their money.

So who is it that chases down all the potential copyright infringements that may be happening all over the country? Well, this job lies with the P.R.O., or Performance Rights Organizations. I discuss these different organizations in a previous post. Someone asked me recently if it was legal for cover bands to perform in public places. I had to take pause for a minute, because I had never thought about the legal implications of that situation. My first instinct was to answer that, no, it was indeed probably NOT legal, and these bands were opening themselves up to lawsuits by doing so without proper licenses. Turns out, I was correct in that gut instinct. There was a recent case where a representative of ASCAP, the American Society of Composers, Authors, and Publishers, visited Roscoe’s Chicken and Waffles and heard not only a cover band playing copyrighted songs, but also songs being played from a jukebox that were not properly licensed. A full reading of the case can be found here. This lawsuit goes to show that it can be very costly to ignore a P.R.O. It is their sole job to track down and collect money for all performances of copyrighted material, and they take that job seriously. One would be wise to make sure that all appropriate licenses are obtained before opening a club where cover bands will perform or music will be played. If not, you may just end up like East Coast Foods and have to pay out a far greater amount of money in court fines than you would’ve had you just gotten the proper licenses in the first place. A great paper about this very issue can be found here, called What's Covering the Cover Band?

At any rate, the legal pitfalls that exist within the music industry are as vast as sands on a beach. One would be advised to hire an entertainment attorney to make sure that the legal t’s and i’s are being crossed and dotted. As evidenced by the previous cases and many more that are out there, to not do so will truly and in all reality be risking the shirt off one’s back. I believe the adage is pay now or pay later, but what isn’t added to that saying is that the later amount is likely one that will be much, much more. Play it safe. Get a reputable entertainment lawyer and stay out of the litigation lane.

Free Your Mind...And The Rest Will Follow

In my own personal growth and development journey, I eventually hit a plateau. I had read numerous books on success, changed the negative tapes in my head to positive ones, and felt that I really had a good grasp on how to go after my dream. But I was often distracted by the everyday details of life. I would have great ideas, but then get too distracted to execute a plan to make those ideas come into focus. It was about three years ago when I read a blog post from Russell Simmons where he talked about why he practices meditation. He discussed the benefits of Transcendental Meditation (TM) and how he is working with the David Lynch Foundation to bring meditation to homeless men. It was then that I decided to start learning more about meditation and began adding the practice of meditation to my everyday life. Suffice to say, I am a true believer in its benefits! It has made a huge difference in my life and my overall feeling of well-being. I have more energy, my creativity flows more freely, and I feel incredibly empowered every day. The greatest benefit has been that I no longer have to take medication for depression. I had previously dealt with bouts of mild depression and had been treating it with antidepressants. I have been free from those meds for nearly three years now, and I've never felt better!! I recommend meditation to everyone I know, as it really has been the miracle I needed in my life. I especially recommend mediation to the music artists with whom I work. It takes discipline to make time every day for it, but the results are well worth the effort!!

In my research on different types of meditation and ways to improve my results even further, I came across a man named Alan Tutt. Alan has dedicated his life to helping others reach their full potential through sharing meditation techniques and personal growth and success strategies. I get daily emails from him, and they always help me focus on various aspects of my own self growth and success development. When I first started reading some of his blogs, he spoke of a practice called brainwave entrainment. Without getting too scientific, brainwave entrainment is simply the use of certain musical tones that increase your ability to go into deeper meditative states. Here is a short video from Steve Halpern that illustrates how brainwave entrainment works:

Alan Tutt has developed a system of recordings called the EmBRACES Belief Entrainment System that uses brainwave entrainment along with neuro-linguistic programming (NLP). Taken directly from his website, he says, “A major difference between my new EmBRACES system and others is the use of a technique from NLP (Neuro-Linguistic Programming), called “Pacing and Leading”. The principle behind pacing and leading is that when a series of obviously truthful statements is heard, a feeling of trust and confidence wells up within us.  Once that feeling is there, our minds will automatically associate that same level of trust and confidence with any further statements — meaning that these ideas are instantly more believable!” Alan has a great deal of credibility with me, so I’m excited to try his EmBRACES system. He does offer a money-back guarantee, so I feel very confident that I’ll get my money’s worth and this system will enhance my meditation a great deal.

As En Vogue said, “Free your mind, and the rest will follow.” We have so much power within our own mind that goes untapped, underutilized. Meditation is a great way to harness some of that power. I recommend it for everyone who strives to do more with their life than settle for mediocre. When you add meditation to your daily routine, you will be amazed at how it will change your life. Whatever type of meditation you choose to practice, I wish the best of luck to you on your journey. Namaste.

The 'Master' in the 'Masterpiece': Why Professional Mastering Matters

The world of Pro Tools and other recording software has changed the game of music. Independent artists can now create a professional sound with their music without the use of a professional studio. They can mix their own tracks and accomplish the majority of the recording process in the privacy of their own home lab. Even with all the technology available though, recording music will only ever be a hobby unless an artist takes their craft seriously enough to have their music professionally mastered.

Mixing and mastering, while often thought of as the same thing, are two separate critical elements of the recording process. Mixing is putting the track together. It consists of setting the levels of the different sounds, the placement of select instruments and effects, and creating the overall “picture” of the track. Mastering, however, is what makes the music commercially viable and “radio ready”. If mixing is putting the puzzle together, then mastering is the coating of shellac that one would want to put on a puzzle that they were planning on framing and putting on display. Mastering gives the final product that “sheen” that it needs to be taken seriously in the professional world of the music industry. Here are some reasons why it’s worth it for an independent artist to have their music professionally mastered:

•  While an artist can easily mix their own work, it is only through the fresh ears of a music mastering professional that the song or album can be truly polished. When an artist tries to master their own music, they aren’t able to be objective, as they are too close to the project. Having one’s music mastered by someone new who has never heard the music before ensures that the track is ready to be consumed by the music-listening public.

• When a song or album is professionally mastered, it will sound great whether it’s being played on a car stereo, on a laptop, on an iPod, or on an at-home stereo system with sub-woofers. When an album is mastered, each of the tracks will have consistent volume levels. Neither of these things can be accomplished with simple mixing. An artist should make sure that their music sounds great on whatever format it’s being played.

• If an artist plans on pressing CDs for release, they must have a mastered album. Mastering allows the music to be prepared for duplication and ultimately, commercial sale. Whether an artist is giving away their music or selling their CDs for $5 a pop at a show, the final product will sound amateur without proper mastering.

Professional mastering does have a cost attached, but the trend in mastering studios is to give an artist a free sample of their work to show a “before” and “after” of the artist’s song. This allows the artist to make sure the person mastering their work is a good fit for the style and genre that the artist wants to represent. A truly gifted sound engineer has the trained ear and artistic skill to master different types of genres in different ways. It is important for an artist to find a mastering professional that fits their vision for their music, and therefore foster that relationship throughout the artist’s career.

There are some great websites that go into far more detail about mixing and mastering. For more information on these two essential aspects of the recording process, check out the following links:

http://www.sageaudio.com/blog/mastering/what-is-the-difference-between-mixing-and-mastering.php

- A mastering studio blog that describes the differences in detail, along with an example of the “sample our work” offer that many mastering studios provide.

http://voices.yahoo.com/what-every-independent-artist-know-the-72266.html?cat=15

- A good article about the mastering process and why it matters.

- One of many great videos from this YouTube channel (Pvtchrislee07) showing the difference in audio quality of a mixed vs. mastered track.

Show Me The Money!!!

In my success book readings, I've often come across the thought that says something like the following, "Success is finding something you love to do so much that you’d do it for free, and then figuring out how to make people pay you to do it." The music industry is known as a tough business in which to make money, so anyone starting out in this industry must know that it’s NOT for the faint of heart. You must have a powerful drive and determination to be successful whether you’re in the role of the artist or the many supporting roles that are found within the industry, such as artist manager. Many who are new to the music industry can benefit greatly by understanding how the money is made. One topic they should cover first is how royalties are paid and to whom. In talking to some of the artists with whom I work, there seems to be some confusion in this category. To help clear up some of the confusion, I thought it would be a good idea to post some resources that will help educate everyone on this very topic.

First and foremost, there is the issue of copyrights. In the U.S., a creative work or piece of intellectual property is considered copyrighted if it has been written down or recorded on some format. But just having that be true doesn't mean you as an artist will have time to track down everyone who may be using your material. That is why performance rights organizations exist, or P.R.O.s. There are three such organizations for this purpose in the U.S. They are ASCAP, BMI, and SESAC. To save time, you can see a comparison of these three agencies here. These three agencies are in charge of collecting royalties from anyone who may perform or play your song. This may include but is not limited to: radio stations, Internet radio/streaming, restaurants, elevators, telephone hold music, etc. They basically track down any public broadcast of your music and collect royalties on your behalf. It’s important to familiarize yourself with these agencies if you plan on making your music career more than a hobby.

While those agencies cover performance royalties, they do not collect royalties from mechanical rights. Mechanical royalties are paid to the songwriter by the person (or business) making the mechanical copy of the song. For example, a record company will pay an artist mechanical royalties for every CD that is pressed, regardless of the sales that CD generates. The most prominent agency responsible for issuing and collecting royalties from mechanical licenses is the Harry Fox Agency. The FAQ page on the Harry Fox Agency website is recommended reading to help clear up any questions you may have when it comes to this complicated issue.

Just when you thought you understood all this rights and royalties business, remember; this ONLY covers the United States. There are a full set of different entities that operate in global markets. I found a great blog that addresses many of these same issues for the European nations called Music & Copyright’s Blog. It is a great resource that should be bookmarked by any artist or artist manager who is new to the music industry.

This information is only the tip of the iceberg when it comes to how royalties are paid. Unfortunately, this is a complicated topic that will require more reading and research. Here are some links to some websites that I have found helpful in wrapping my head around all the ins and outs of this area of artist management:

http://www.indieandunsigned.com/the-music-royalty-breakdown/

-A great article about who gets paid by whom and for what. A must-read.

http://www.howstuffworks.com/music-royalties7.htm

-Another really great break-down of how royalties get paid. Bookmark this one.

http://diymusician.cdbaby.com/2012/11/how-performing-rights-organizations-pay-royalties-to-artists-and-how-to-make-sure-youre-getting-paid/

-Not only a great article, but DIY Musician is a great blog to follow for any independent, up-and-coming artist.

Let's Make a Deal: Why and What You Should Know

For anyone in the music industry, there will come a time when you will have to negotiate with another party. It could be to work out appropriate compensation for a performance gig, to broker a fair and mutually beneficial record label contract, or anything in between. For this reason, it’s a good idea to understand the art of negotiating and how to accomplish the goal of getting the best deal while still preserving the relationship of the person or parties with whom you are dealing.

There are many sources from which to get this education on negotiating. I will be reviewing three of these sources for this blog article to get you started on your way to feeling prepared to handle any deal-making session in which you may find yourself.

The first source comes from a podcast created by Elkay Corporate Advisors, whose business mission statement is “helping individuals, entrepreneurs, and business achieve success”. The interview in the podcast is with Greg Williams who is an internationally known negotiator. In his interview, he discusses the need for proper preparation for a negotiation. Greg says, “In any negotiation, if you do not put your emotions in the negotiation, you will be better prepared to walk away from the negotiation.” In other words, if you are emotionally involved, you will be more likely to make concessions that you may not otherwise make if you were able to be more objective. Greg also emphasizes how important it is to develop a plan prior to heading into a negotiation. He suggests that background preparation is critical in setting yourself up for a desired outcome. Being prepared is also another way to make sure that you can keep the negotiations based on objective criteria. It’s hard to argue against an industry standard or statistics, as they are facts, not opinions. This use of objective criteria will assist you in staying away from emotions during a negotiation. Greg also discusses how body language and facial expressions can be just as powerful during a negotiation as the words that are spoken, if not more so at times. I encourage you to listen to the entire podcast to see what tips you can glean from this ‘Master Negotiator’.

The goal of any negotiation is to create a mutually beneficial agreement for both parties. This not only leaves both parties feeling as if they got something they wanted, but this also preserves the relationship between the parties for further potential negotiations. In searching YouTube, I found a great lecture given by Joel Peterson at Stanford Business School called “Conducting Effective Negotiations”. One of the concepts (and there are many as this video is an hour lecture) Joel illustrates is having “Rules of the Road” or ROR. He gives an example of how he wanted to be seen as a negotiator who didn’t move on price. If he wanted to do a deal for a million dollars, he would get it at a million and nothing less. After several serial negotiations with one particular person with whom he negotiated 300 deals in his career, at about 50 deals in, the other party caught on to his strategy. The other party said to Joel that he simply FELT BETTER if he could negotiate a price. So he told Joel that if he was going to want a million dollars on a particular deal, to just start the negotiations at 8% to 10% higher than where he wanted the deal to be made. So Joel did this and the two were able to make 250 more deals over the span of 20 years using this mutually beneficial arrangement. Once Joel found out what the other party’s underlying interests were, it became easier to negotiate based on those interests. If you’d like to view the entire video to learn more about Joel’s experience and knowledge, I’ve included it for you here:

Finally, no blog post about negotiation would be complete without including something about a BATNA. BATNA is an acronym for Best Alternative To a Negotiated Agreement. This concept is one that will likely determine the fundamental dynamics of your negotiation. Obviously when you go into a negotiation, you and the other party are BOTH looking to get something out of the exchange. But what if your negotiations break down? What if they fail? This concept is discussed well in a video on YouTube from a company called The Voluntary Life. It’s useful to have a BATNA, as it allows you to understand what your worst-case scenario is if the deal does not happen. In other words, what are you going to do if you can’t reach an agreement? If you have a BATNA that says your company will completely fail if you don’t make a certain deal, then you are already entering that deal in a weak position. You also must think of what the other party’s BATNA would be. This will allow you to work out with what position the other party comes to the table. Using a BATNA allows you to come to the negotiation table with a clear picture of what will happen if you need to walk away. You can listen to this and many other helpful concepts from The Voluntary Life by clicking the video below:

I encourage any entrepreneur reading this blog to further educate yourself on negotiating. If you are in the music industry, you will need to have good negotiation skills to protect your own interests and build relationships with other parties that can potentially help move your career forward. If you don’t get the education now as you enter the industry, I promise you that there will come a time when you’ll wish you would’ve heeded my advice. Thanks for reading, and happy deal-making!