10 Questions for a Music Lawyer
I thought this would be a good place to start for my first Ocean Town Music article (of course, check out my Legal Guide for Musicians for something more comprehensive). I often run into artists or young industry professionals at music conferences who want to meet with a lawyer, but are not really sure what to ask. They know that meeting with a lawyer is a positive (and often necessary) step for their careers, but getting the conversation going is seemingly difficult if you don't know what to ask.
A simple conversation with a lawyer who has experience in the music business can assist in flagging potential issues and provide useful information and guidance as you navigate through this complex and dynamic terrain, whether as an artist or industry professional (or both). There is never any harm in booking a consultation with an entertainment lawyer (which is typically at no cost), even before a pressing or urgent issue arises.
Soooooo, having said that, and in no particular order of importance, here are 10 common questions for a music lawyer, which will hopefully spark some ideas and get the ball rolling:
1. What is a Music Lawyer and what do they do, anyway? There are no dumb questions - even this one. Music lawyers provide legal advice on all aspects of your music career/business, such as copyright considerations, business structures, and contracts/agreements of any kind (e.g. management, recording, publishing, producer, co-writing, band partnership, shareholders', etc.). Lawyers provide very different services than managers or booking agents, for example, who are also critical members of your team.
2. What business structure should I/my band utilize? When (if ever) is a good time to incorporate a company? It is important to consider the structure of your music business and know the benefits and disadvantages of carrying on business as a sole proprietorship, partnership, or incorporated company, for example. The most appropriate business structure will depend on a number of factors, including tax planning, liability protection, and the nature/scope of your business generally.
3. Should I trademark my band/stage name? There are a number of advantages to registering a trademark or trade-name. Trademarks are different from copyrights and registered business or corporate names (although, in some cases, a trademark could also be a copyright protected work and a business or corporate name could be protected by trademark law). Trademarks are words, designs, sounds or a combination that distinguish one's goods and services in the marketplace. Copyrights, on the other hand, protect artistic and literary works, which includes songs and sound recordings.
4. I was just presented with a management contract. What things should I look out for? Every contract is different and should be reviewed in light of the particular facts of each case. I will dedicate a standalone post to management deals.
5. I often co-write with other artists. Should we sign an agreement before co-writing sessions? This is generally recommended for a number of reasons. Co-writing agreements will establish clarity on things like song writing splits, ownership of copyright, administration of songs, restrictions (if any) on use of the song(s), etc. Writers should agree on these items before the creation/recording of a song if at all possible.
6. I'm planning to self-release my next record. What legal considerations should I be mindful of? This is a big question and will be different for each self-releasing artist. However, generally, you should be thinking about things like ownership of artwork, ensuring your songs and recordings are registered with SOCAN/BDS, determining whether a band agreement is appropriate, ensuring you have appropriate licenses/clearances for your cover songs (if any), getting agreements in place with your side-artists/session musicians (if any), etc.
7. What is the difference between copyright in a song vs. copyright in a recording? This concept is pretty key to understanding how the music business works: whenever an original piece of music is recorded, a copyright exists in both the (1) sound recording; and (2) underlying musical work embodied on the recording (a performer also has a copyright in their performance, but I will discuss that another day). Both copyrights trigger different revenue streams when used in different ways, which can get a bit complicated (particularly in the world of digital streaming). More to come on this topic.
8. What is music publishing and how do I make $$ from publishing my music? Music publishing is the business of causing musical works (as opposed to sound recordings) to make money, and is perhaps the most misunderstood (and complicated) part of the business. If you are a songwriter/owner of musical works, understanding the various ways in which they earn money is essential.
9. Should I sign a record deal? What things should I watch out for in a recording contract? As above, every contract is different and should be reviewed in light of the particular facts of each case. I will dedicate a standalone post to record deals.
10. Should my band enter into a Band Agreement? This is something you'll want to consider carefully if you play in a band. A band agreement will often confirm things like: how to deal with band members that quit, how to deal with the band name if the group disbands, ownership of masters/compositions, income and how expenses are paid, decision making and voting, etc.
Of course, there are far more legal issues/questions to consider, which will depend on your specific circumstances and the nature of your career and business. The above is only intended to scratch the surface. As always, please reach out if you would like to chat about your particular circumstances and how the above (or anything else) relates to your career as a musician or industry professional
*Disclaimer: This article is not intended to constitute legal advice. Please contact a lawyer to discuss your specific circumstances and any questions you might have.