Lawyers, Guns and Money: 2010

Monday, August 16, 2010

Copyright Law. Copyright Your Own Music

Copyright protection for your music is extremely important. If you did not own the copyright to your music, anyone could use it in whatever manner they wanted. In other words, it could be copied without permission, performed at venues, or used for projects you may not endorse. As such, other people could be earning off the work you created while you receive zero credit.

Fortunately, there is the Berne Convention for the Protection of Literary and Artistic Works. This convention sets out minimum standards of copyright protection that its signatory countries follow. There are over 150 countries that belong to the Berne Convention - so if you are reading this, your country probably belongs to the convention and follows the minimum standards.

- How to Copyright Music

According to the Berne Convention, copyright is automatic. What this means is, as soon as you put your music in a fixed form, you automatically own the copyright. So "how do you copyright music?" you put it in a fixed form. Here are some examples to further explain the concept of automatic copyright:

Lyrics: when you write your lyrics on a napkin - you automatically own the copyright to those lyrics. Other people are not allowed to use your lyrics without your permission.

Musical Composition: when you write the musical notation on staff paper (for example), you own the copyright to the composition. Others are not allowed to use this musical composition for their own work without your permission.

Sound Recordings: when you record your song on a CD, you own the copyrights to the recorded performance (this may be the song and/or lyrics). This means others cannot copy the specific recording of the song (this is why it's illegal to "burn" CDs you buy in the stores - because the artist or label owns the sound recording). As a reminder, you need permission to record someone's song if you are using their lyrics or musical composition.

- Copyright Registration - Not Poor Man's Copyright

Owning the copyrights to your music is one thing, but actually being able to prove you are the owner of the work is another. Many people like to use the method of "Poor Man's Copyright", which is mailing yourself a copy of your work through registered mail. This method has been deemed completely useless when it comes to proving ownership because the registered envelop can be tampered with in a number of ways.

As such, the most proven method to protect the copyright of your music is to register your work with a reputable 3rd party. To find registries, you can simply type "protect copyright" into google, yahoo, or msn and a number of them will come up. Do your research and pick a registry that best suits your needs (look at membership fees, renewal fees, and the duration of protection as a starting point).

As a reminder, you do not need to register your work to be protected under copyright law, however, it is an excelled form of protection (and worth the investment) should someone infringe on your work.

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Disclaimer:
The above information is meant as a general guide to further your copyright knowledge and does not constitute legal advice. For questions about your specific work, you should consult a copyright lawyer in your country.

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Monday, August 2, 2010

Music Contracts

Many bands that form start out as just good friends. This is probably the best time to draw up a Band Members Agreement, when every one is on good speaking terms. Few members of a band start their music careers considering the nitty gritty of which member is entitled to what proceeds from any sale pertaining to the bands musical works. However, any band trying to make a living in the music industry by definition is a business matter. There is a music contract, which can be drawn up to protect each member of the bands contribution to its commercial success. It is known as a "Band Members Agreement".

Unfortunately, such music contracts can be viewed as being akin to a prenuptial agreement prior to a marriage. This may be uncomfortable to certain band members, but bear in mind couples, I hope, marry for love. Moreover, a marriage agreement is a legally binding contract in its self. I would assume that most band members at least are not in love with each other!!! Thus, just like in a work environment you have work colleagues who are friends but all have their own employee contract with their respective company, institution, organisation etc. You might even employ them.

Thus a Band Members Agreement outlines the responsibility and expectations of all band members towards each other. It can also be viewed in a similar way to a will in that it plans in advance who gets what in the event of something dreadful happening. Sounds a bit heavy for most musicians I have met and tolerated. Well you know, sex, drugs and rock n roll my friends.....Oh, please!!!

A little voice in your mind might be saying "Why bother with all that stuff until we have a record deal or something like that? Well I might have had sympathy with that view in my younger days. Now I am older and the Internet is here. What If you don't get a record contract and decide to go it alone using MySpace, Amazon, or createspace.com. If you start selling units of your tracks as mp3 downloads how do you decide who has the rights to receive profits from the sales. Also, in what percentage terms should that be worked out between the band members?

Recently, whilst uploading one of my tracks for sale on Amazon.com via createspace.com I was very interested to find a form that asked for information regarding which parties should receive royalties from any sales? Now have I got your attention? If I haven't and you are in a band there may be trouble ahead.

One of the central reasons for such an agreement is related to the issue of copyright. One of the biggest slices of the financial cake comes from those members of the band who write the music and lyrics. Think here Lennon and McCartney as an iconic example. Also, less iconic no doubt is the court case regarding British 80's band Spandau Ballet and who wrote their songs. An example of this was the classic "True." So it makes good commercial sense and hopefully will secure the bands friendship together if such a music contract is negotiated before, rather than after the bands musical and in some cases personal roller coaster begins. It could save a lot of arguments and disputes not to mention very expensive legal fees in the future. Money allegedly is at the route of all evil and many band break-ups and disputes are of a financial nature.

So what is this music contract known as the "Band Members Agreement?"

Well it can outline in advance what roles the band members play in its future. These are some examples but they can vary a great deal. Can a band member work with another artist? What happens if one band member dies? How should the profits from, for example, royalties be split? Who pays any band debts? Who looks after the bands finances? Who owns any assets, equipment, transport etc? Who has ownership of the copyrights of the songs? Who takes care of any master recordings? Who decides when to employ or fire a manager? Who owns and has the legal right to use the bands name?

Often all members of the band own the name. Are the decisions of the band made by committee, by a votes system? Alternatively, is this responsibility left to one or two band members?

Please note that in the absence of any written agreement the law of the land in your country may ultimately decide things on your behalf, as is the case in state partnership law in America. Based on this, as with any legal matter, it would be better if a music attorney were employed to draw up the contract. In an ideal world every member of the band would have a music attorney to represent their interest and help to make the music contract more equitable and fair between band members. "Well that sounds like a whole load of money?" I hear you say. You can hold off the cost by agreeing on paper the basic things that should be included in the Band Members Agreement until a later date when things get on to a more serious financial footing.

The band can then look at employing professional advice. Remember that, music contracts are drawn up to limit the likelihood of a serious financial or artistic dispute. If such events do occur, then a music contract as with any contract is there also to resolve any issues that might arise. Without them, everything is based on nothing more than a handshake or hearsay. Although music contracts are a psychologically uncomfortable issue to deal with for bands they are a necessary evil in the long run. Bear in mind that proposing a Band Members Agreement could be an excellent way of testing the amicability of the band members, if they argue before they have an agreement imagine what it would be like without one later on when things are really serious.

This entry is not intended legal advice. Seek professional advice before you ever sign a music contract.

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Tuesday, July 20, 2010

Copyrighting Your Band Logo

There is a lot of time, effort and usually money that goes into creating a logo that accurately represents your band. As such, it's important to take the proper steps to protect your art so you have some recourse if infringement occurs.

For the most part, band logos can be considered an original and creative form of art - assuming the logo is more than just the name of the band without an artistic element. As such, they can be protected under Copyright Law as a Visual/Artistic work.

Just to ensure this is clear, the artwork for the logo can be protected under copyright law, but not the name of the band itself. This is because copyright law does not protect names, slogans, or catch-phrases. If you were looking to protect against other bands using your actual name vs. the artwork, this would fall under Trade-Mark Law.

In order to protect your band logo under copyright law, all you have to do is put your logo in a tangible form (on paper, on CD, on a hard drive, on the back of a candy wrapper, etc.). Once it's in this fixed form, the creator owns the exclusive rights to produce or reproduce the art. Although the designer/artist automatically own the copyright to the logo artwork the moment it is put in a fixed form, it's best to have taken further steps to prove to the courts that the work was originally yours should someone (perhaps another band) steal your logo or a big portion of it.

In general, the best option for added protection is to firstly seek the advice of an entertainment lawyer who should know the inner workings of the system and the best option for your band, direct you to a reputable copyright registry. For ultimate protection, one should register their logo as soon as it has been completed, before showing others. Your manager should have no qualms for hitting the credit card for this.

There are a number of options for copyright registries. You could register through the Government, through associations, or through online registries. When doing your research, ensure you know all the costs involved, whether there are membership or renewal fees, and whether they provide you with a time-stamped registration certificate. Higher costs don't necessarily mean 'tighter' copyright.

Some say (usually entertainment lawyers) that the "Poor Man's Copyright Method" (i.e. sending yourself your work through mail) is unlikely to hold in a court of law should someone infringe on your logo design. I beg to differ. I've been through the court system twice using this method and was successful on both occasions.

Regardless of which method you choose to protect your band's logo, remember to register it before you show it to third parties. Please bare in mind that the above-mentioned laws vary from country to country and state to state.

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Monday, May 17, 2010

I Am The Innocent Bystander

As unfortunate as it is, unless you're strumming away in your bedroom or to some friends at a barbeque music is,as mentioned in another blog entry, a business.

When the term 'business' is mentioned to most independent musicians the inevitable responses are either one of apathy or one of panic. Having worked as a professional musician since 1983, represented myself in court with and without a lawyer on copyright matters I can safely say that responses of apathy or panic are not appropriate.

This brief introductory entry blog entry shall cover the most basic, easiest and legally airtight globally accepted way of copyrighting both recorded material and songwriting credits.

If you have written a song that you wish to record or wish your band record, print out the song title, lyrics, and chords to the song. Include at the bottom the days date, your own name (printed) with your signature and date of of birth. If the song has been co-written it is imperative that the co-writer is present when this occurs.

The next step is to take your lyric sheet as outlined above (please ensure that any co-writer is present) to your Post Office. Explain to the Postmaster your purpose and that it is imperative that the postmark is clearly visible. Place the document into the envelope. On sealing the envelope, place your signature over the sealed area and place clear tape over this area. By doing this, any attempted tampering will be clearly evident.

In the case of solo or band recordings, follow the above steps.....including your clearly marked audio format. Ensure all people involved in this process have signed the relevant document as outlined above and are present at the Post Office. Ensure their signatures are also present on the sealing area of the envelope. Any member who 'can't be bothered' accompanying you to the Post Office fully negates his/her content within the envelope and thus any possible royalties that may ensue. (It may be worth pointing them to this entry).

Once all of the aforementioned material is signed and sealed, guess what happens next? Yup! It has to be delivered. This can be a tricky one. In my case I'm fortunate in that I have a lawyer & Justice Of The Peace who are personal friends, otherwise it would cost....and I'm attempting to avoid you spending money. At this point I suggest a trusted friend who is not in the music industry and ideally geographically distant.

The intent of this introductory post is to hopefully spurn my fellow independent musicians into getting their existing catalogue of material fully and legally copyrighted.

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