Where's Music Attorney

By accident, I came across a post in another forum asking “Where’s Music Attorney?”

Just FYI:

1. Except for rare occasions, I only hang out in this forum.
2. I prefer to respond to posts when (a) I think I can really add something of value; (b) the info I’m seeing posted needs some……uhm….. “clarification”; or (c) like now, when I have the record company lawyer on the speakerphone and I’m bored with listening to his same old nonsense.

Naturally, I reserve the right to dispense with any of the above referenced condition precedents

Best,
MA

PS - I just have to say that sometimes I’m just dumbfounded by the culture/thinking at the major labels. For example, I asked a lawyer to e-mail me a draft of the recording agreement we were negotiating in Microsoft Word so I could make comments to it inside the digital document itself and not have to print it out and use up 70 pages of paper. He says “we never e-mail our documents” and when I asked why he could only say it was company policy. My guess would be the mindset/culture of protecting their “property” extends to their documents. So I told him I was tired of reading blurry 70 page faxes and to send me a hard copy via mail. He says, “okay.” The hard copy arrives, I scan it, OCR it into a Word doc, and return it to him via e-mail with my comments inside the document. Frighteningly, he called me up and said “how’d you do that?” I simply responded by saying “and you want to lead the digital revolution of music....”

Rant over.

 

I don’t have time for a thorough discussion of “shopping” but here are a few thoughts:

1. In my opinion, when it comes to finding an attorney who will “shop” your CD, the only one you should be interested in is the one that is passionate about and believes in your band. However, I realize it’s hard to know sometimes if that’s truly the case because many lawyers will spend time convincing bands/artists they are interested even if they are not in the hope that one of the many irons they have in the fire becomes hot. Still, I’d look for one who seems willing to tear the hinges off of doors.

2. In addition to believing in the band, a lawyer needs to know, understand, and be able to help with their goals. For example, there are some powerful firms that I think are basically “new artist mills” (i.e., get a band signed and take a piece of the deal, but that doesn’t mean it’s the “right” deal or the “right” label). I know plenty of bands/artists that are signed, but are miserable and can’t get out of their recording agreements. I always ask an artist why they want to get signed and it amazes me how many have no idea what it really means to be signed to a label (both the good and the bad).

3. If the attorney isn’t passionate about the band or doesn’t see a “pot of gold”, then many of them will send out your CD with a standard cover letter to everyone on some mailing list in the hope that someone will bite as opposed to a focused approach finding the right “home” for the band which is incredibly important. It’s not just about getting a deal, it’s about getting the “right” deal.

4. I would highly recommend you do your homework and find out what labels have bands that are similar/sympathetic to yours, who the A&R people are at that label, who their management is, etc. In essence, figure out who would “get you” and work your way into that world. For example, we signed a rap artist to a label that we felt had a horrible track record breaking rap artists. The client wasn’t interested in that opinion I’m sure, in part, due to the signing advance. However, the label didn’t make the client a priority, didn’t bring in the right producers, didn’t commit to the proper market spend, etc. and the client ended up being dropped after a relatively poor showing on the first album and is now, in my opinion, perceived as damaged goods and unlikely to get anyone else interested. Naturally, it was all our fault ;-) Getting a shot is one thing. Getting the right shot is another.

4. Do NOT pay someone a “shopping fee” (e.g., $2,000) to send your CD out. If someone is merely forwarding your CD under their cover letter, then they’ve probably done it before and have no credibility. In fact, I can’t think of any colleague that charges to shop. The lawyers I know who are truly doing this for a living are interested in the “home run” (as opposed to those, for example, who want “in” to the business and are litigating “slip and fall” cases in the meantime).

There’s much more, but I’m out of time and I also wanted to respond to the rest of your e-mail:

1. Sorry to hear hotshot is not returning your calls, but it’s not an uncommon story, unfortunately.

2. I know Janine and her firm. Frankly, I understand her point. By that I mean I have a bunch of deals on my desk that the firm will get paid on as opposed to taking on the hundreds, if not thousands, of opportunities to “shop” someone that will almost certainly not result in a record deal and, therefore, not be a good use of time from the standpoint of running a business. Based on my experience and the experiences of others I talk to, shopping a band can take a lot of time and the odds of success are incredibly low. These low odds used to be more bearable because the deals you did secure were “rich” enough that it made the risk/reward analysis worthwhile. Now, with new artist signings down in number and smaller in overall dollars, it’s just not good business from a risk/reward analysis.

In addition, if you work at a firm like Janine’s or ours, it’s very often that deals are brought to us already in progress and the client is just looking for us to take the deal to the next level as opposed to trying to make it happen in the first place.

Finally, even if you do have a “deal” in place, it still may not make sense for some lawyers. For example, I just finished up a recording agreement that will pay a band a combined $50,000 for advances and recording costs for the first album. If we take 5%, then that means we will get paid $2,500. The problem is that it is still a long form recording agreement that needs hours of careful attention and multiple redrafts to get right and that $2,500 fee is no where near enough to cover hourly fees, let alone make any money. It’s possible a lawyer could opt for 5% of all the band’s income (i.e., record royalties, touring, songwriting, etc.) which, if the band hits, will be a significant amount of money, but the overwhelming number of arrangements like that don’t produce the expected windfall so most lawyers I know aren’t that excited about it. We did it because of our relationship with the parties involved.

3. I’ve only done one deal with Ben McLain and it was (relatively speaking) a low level deal so I don’t know much about him except for that brief interaction. Again, whether it’s Ben or anyone else, the questions are the same (i.e., does the person totally believe in you, do they have the contacts you want, etc.)

4. Don’t know if you still have “stuff on the table” but I’m happy to try and help if you want to post the agreement or specific provisions or specific questions about it. You can delete dollar figures, royalty rates, and other info you are not comfortable sharing (with the understanding that it will be harder to really analyze the deal). Unless some TBer really had a deal that made sense for me to form a professional relationship with that person, I simply prefer to answer questions publicly in the hope it helps the whole community.

That’s it for now.

Best,
MA

 

Personally, I think focusing on a manager (as opposed to an attorney) is the right approach. If the guy from Detroit puts something on the table, then I’m happy to give you some input via this board. I simply don’t have time to respond to everyone individually and it wouldn’t be fair to others. At some point, I may develop a direct professional relationship with some TBers, but that will happen if and when it’s right for both parties.

More importantly, even though the board may not be the quickest form of response, in my opinion, it would be very rare that a management agreement, record deal, publishing agreement, or whatever requires some sort of immediate response. If people are truly interested this week, then they should be equally interested next week and the week after. Obviously, it can’t go on forever, but my experience suggests that people who are offering deals with pressure attached are usually trying to get something by the other side. Real professionals know there is going to be negotiation, discussion, redrafts, etc. and it’s not going to happen (nor does it need to happen) on some expedited time frame. I understand there might be exceptions, I just find them to be very, very rare.

Let me give you an example. We get requests all the time to use a song or master recording in a film. Most, if not all, the requests are stamped “URGENT” with follow up calls threatening the movie is going to be “locked” by the end of the day. In my earlier days, I’d run around thinking there was some emergency and I didn’t want the client to miss out on an opportunity. Let’s just say that over the years I’ve learned that the “urgency” is almost always a function of the licensing people trying to make their job easier for themselves as opposed to any true emergency. If there’s a “real” emergency, facts tend to emerge that make it plainly obvious that it is something which needs immediate attention.

Agreements regarding the recording of albums, writing songs, touring, management, etc. are all things that simply don’t normally require high-pressure time frames to complete. I usually check in often enough that it shouldn’t be a problem. If it is, I’m sure Janine won’t mind having a paying opportunity dropped in her lap ;-)

Best,
MA

 

As I’ve said before, my responses to TB posts are meant to help raise awareness of issues that need to be discussed more fully with qualified professionals. That is, they are not meant as legal advice. My thoughts on the situation you described are as follows:

1. In the U.S., there is a bundle of rights that a copyright owner has in a song which include the right to make copies, public performance of the song, adaptation of the song, etc. Each of these rights can be licensed individually. For example, the right to include a song on a CD does not require all the same rights that are required to include a song in a feature film. To record a copyrighted song into an audiovisual work and stream it on-line like you are proposing requires permission (i.e., a license) from the copyright owner(s) of the song (i.e., the music publisher). Although you don’t mention wanting to do it, there are additional rights you would need from the publisher to make copies of the video and distribute them.

2. The other thing you want to be aware of is the copyright in the video itself (as opposed to the song embodied in the video). The short story is that the people who contribute to the making of the video (e.g., the person showing how the song is played, the cameraman, etc.) will all be “authors” of the video and share equally in the copyright of the video UNLESS you get a signed agreement to the contrary. This type of agreement is typically called a “work-for-hire” agreement, but there are other ways to handle this (e.g., you could also have people involved just assign their rights to you).

Therefore, as I understand what you want to do, you will need a license from the copyright owner of the song granting you all the necessary use rights and you will need to decide how you want to handle ownership of the video itself (i.e., is it going to be you, the school, etc.)

Hope that helps.

Best,
MA