Written by Deborah E. Johnson, Esq. www.entertainmentlawyerjohnson.com
Many artists, especially independent artists, fail to see the importance of hiring an entertainment/music lawyer. Some artists feel that it is not in their budget or that it is not a priority. Hiring a music lawyer is of such importance that an artist should budget the cost just as any other budget item, like production fees, photography, video services, etc. A music lawyer is an investment in an artist’s career. Additionally, it will not cost the artist as much up front as it would later down the line, should the artist find himself in a precarious legal situation. My law office makes every effort to make services affordable for the independent artist and my fee scale consists of several flat fee items which allows the artist to easily budget for that cost.
What I tell clients is that you cannot afford not to hire a music lawyer. WHY? You are an artist! You are not trained in the law of music. Even if you are an artist that is music law savvy, your mindset is still that of an artist. Many great thinkers of our time use the mantra: “Stay in your lane.” This is great advice because we are all wired for a specific purpose. People who understand their purpose early, understand they also need to be trained for that purpose. Don’t get me wrong. I have met my share of educated artists; however, the artist’s mind is not constantly thinking of ways to protect their intellectual property while creating it. That is my job! A music lawyer will assist the artist in the protection and preservation of their intellectual property. Notwithstanding, the artist might be losing money without proper legal counsel. Music lawyers can and should assist with negotiations and contract review. They have your best interest at heart and they are detached emotionally from the situation; therefore, they can negotiate the best terms on your behalf. This allows the artist to be an artist while maximizing their dollar as an artist. You do your job - I will do mine. Do not wait until you are in dire legal trouble to hire your entertainment lawyer. Do it now and save time and money down the road!
One of the biggest mistakes you can make as an artist is failing to properly copyright your music. Your music lawyer can assist with the copyrighting; however, many artists feel comfortable registering their own copyrights. The important point to remember here is – COPYRIGHT, COPYRIGHT, COPYRIGHT.
A copyright tells the rest of the world who owns an original work, as well as enabling its creator to bring legal action for infringement and expanding your rights and remedies under the law. Artists will often use or hear the term “poor man’s copyright.” This means to send the original work to yourself via mail. I do not recommend using the “poor man’s copyright” method because it is more difficult to prove in court, and you may not receive the additional protections provided under federal law when a work is not registered with the U.S. Copyright Office. Registering your work with the U.S. Copyright Office creates a time stamp of when the original work was created as well as the denoting the rightful owner. It is your most powerful piece of evidence should you discover that one has copied or unlawfully exploited your intellectual property. Once a piece of music has been created, the creator should seek to register the work with the copyright office as soon as possible. This is fairly inexpensive and well worth the money.
Artists should be aware that there are two types of copyrights. First, the artist can copyright what is traditionally called the Sound Recording (SR). Form SR should be used when registering a published or unpublished sound recording. This form is limited to the sound recording itself. Form SR can also be used when an artist is registering both the sound recording as well as the underlying work, as long as the claimant is the same for both. Form PA (Performing Arts) should be used when a claimant is registering the underlying work only, such as a musical composition or lyrics to a song.
Copyrights on registered works, registered after Jan. 1, 1978 are protected for the life of the creator plus 70 years. More information on copyrights can be located at http://www.copyright.gov/.
NOTE: Registration with the U.S. Copyright office may or may not necessarily provide copyright protection internationally.
There are basically three major PROs: BMI, ASCAP, and SECAC. They all do basically the same thing – track, calculate, and pay the songwriter(s) for royalties earned. This is especially imperative if you are a singer/songwriter. Some PROs require a small fee to join, while others are by invitation only.
A PRO represents songwriters, music publishers, and composers. The PRO’s main function is to collect license fees on your behalf, when your music is played on radio stations, news media, internet, satellite, hotels, clubs, concerts, and other businesses. A percentage of those royalties are then forwarded to the songwriter(s). Songwriters should be aware that they may only affiliate with one PRO at a time - so choose wisely.
Songwriters should also consider setting up their own music publishing company. A music publisher’s sole purpose is to ensure that songwriters receive royalties when their compositions are exploited commercially. In contrast, there is no objection to registering will all three PROs simultaneously, as a music publisher (contrary to songwriter affiliation mentioned above).
These are the web addresses for BMI, ASCAP, and SESAC:
Sound Exchange is a fairly new service with its sole purpose to administer services to stream artist content. Translation: SE tracks and pays out to artists on digital performance royalties. Sound Exchange also collects and distributes those royalties back to the artist when the content is played on a non-interactive digital source. Do not confuse this service with that of a PRO. Further good news is that there is no fee to join Sound Exchange.
Below are a list of the benefits to joining Sound Exchange (borrowed directly from their FAQ page):
Maximize your revenue through foreign royalty collections.
Join the effort to fight for long-term value of music.
Conference and equipment discounts.
Additionally, this linked article about SE further demonstrates that is a growing service and provides helpful information in understanding how its service works.
I cannot express the value and importance of song split agreements. Song split agreements delineate the songwriters’ percentage of ownership and contribution to a song, when a musical composition is created. Song split agreements should always be signed after a song is written/produced/recorded but before everyone leaves the studio. When split sheets are not signed in the studio, a musical composition’s authorship can be questioned or disputed. This can cause issues when copyrighting works and registering songs with PROs. Split sheets should include each of the songwriter’s names, authorship, percentage of contribution, and the name of their registered PRO for each song author. Publishing percentages can and should be included as well. Songwriters’ contribution percentages and publishing percentages may differ on the same split sheet. Basic song split agreements can be located online and/or my law firm can provide and explain a basic song split agreement for a small nominal fee.
The Law of Deborah E. Johnson, Esq. is located in the Dallas-Fort Worth area. For general information or to set up a consultation, visit her on Attornify.
Attorney Deborah E. Johnson’s website: