The musician's business and legal guide : a presentation of the Beverly Hill Bar Association Committee for the Arts

Cover
Title Page
Copyright Page
Contents
Preface
Acknowledgements
Introduction
Getting Started: Music as a Business
	Entertainment Group Names: Selection and Protection
		Service Marks
		Researching the Name
		Creating Rights in the Name
			Territoriality
			Ownership of the Name
			Rights in Cyberspace
		U.S. Trademark Registration
			Registration Procedure
			Foreign Registration
		When You Become Famous
		Infringement Protection
		Conclusion
	Business Entities
		Sole Proprietorship
		Partnerships
			General Partnership
		Joint Venture
		Limited Partnership
		Corporations
		Limited Liability Companies
		Loan-Out Companies
		Legal Obligations of Employers
			Employers’ Tax Obligations
			Other Employer Obligations
		General Business Obligations
	How to Set Up a Money Deal for Your Music Project
		Developing the Business Plan
			Identifying Your Goals
			Preparing the Budget
			Preparing the Proposal
		Raising Capital
			Self-Financing
			Borrowing
		Loan Sources
			Bank Loans
			Investments and Profit Sharing
				Active Investors
				Passive Investors
			Investment Loans Conditional on the Success of the Venture
			Limited Partnerships
			Corporate Shares and Limited Liability Company Memberships
		Crowdfunding
		Complying with Legal Statutes
			State Law Exemptions
		Identifying and Evaluating Sources of Income
			Educating Investors about Risk
			Measuring Fair Return for Profit Sharing
		Conclusion
	Music Attorneys
		Specialization
		Music Attorney Functions
		Finding a Music Attorney
		Working with a Music Attorney
			First Meeting
			Fees
			Fee Payment
			Retainers
			Conflicts of Interest
			Confidentiality
			Changing Lawyers
		Conclusion
		Attorney–Client Fee Letter Agreement—Hourly Arrangement
		Attorney-Client Fee Letter Agreement—Percentage Arrangement
		Attorney Conflict-Of-Interest Waiver Letter
Protecting Your Compositions
	Music Copyright: A Search for Certainty
		What Is a Copyright?
			Intellectual Property—Copyrights, Patents, and Trademarks
		Musical Works and Sound Recordings
			Phonorecords and Digital Phonorecords
		Prerequisites for Creating a Copyright in a Musical Work
			Joint Works
			The Copyright Office
			Copyright Registration and Notice of Claim to Copyright
			Copyright Transfers
			Reacquiring Copyright—Termination of Transfers
			Duration of Copyrights
		Works Made for Hire
		Public Domain Songs
			Copyright Registration of Works Based on Public Domain Works
		Copyrights in Sound Recordings
			Sound Recordings as Works Made for Hire
		Proper Copyright Notices
		Copyright Infringement
			Proving Infringement
			Infringement Remedies
			Fair Use versus Infringement
			Fair Use and Parody
			Is Imitating a Performer Infringement?
		Dedicating Your Copyright to the Public Interest
		Conclusion
	Sampling
		Copyright Infringement
			Warranties
			Unsatisfactory Masters
			Fair Use Defense
		Unfair Competition
		Pre-1972 Sound Recordings
		Rights of Privacy Violations
		Federal Antibootlegging Statutes
		No Electronic Theft Act
		Penalties
		Copyright Clearances
			Clearance Costs: Royalties
			Clearance Costs: Buyouts and Co-Ownership
			Interpolation
		American Federation of Musicians’ Payments
		Sound Track Sampling
		Conclusion
		Sample Use Agreement
		Master Use Sample Use License Agreement
		Mechanical License
	Collaborator/Songwriter Agreements
		Co-writers
			Percentage Ownership
		Grant of Rights
			Songwriter Credits
			Co-administration of Song Licenses
			Division of Income
		Pursuit of Copyright Infringement
		Copyright Duration
		Copyright Transfers
		Different Performing Rights Organization Affiliations
		Songwriters as Members of Different Bands
			Controlled Composition Clause
		Co-accounting
		Future Generations
		Record Producers as Co-writers
			Beats/Tracks
		Phantom Co-writers
		Conclusion
	Digital Downloads and Streaming: Copyright and Distribution Issues
		Digital Performance of Sound Recordings
			Amendments to the Copyright Act for Performance of Sound Recordings
			Allocation of Fees
			The Value of Streaming in 2016
			Payments for Streaming
		Digital Performance of Music
			Digital Phonorecord Deliveries of Sound Recordings
			Delivery of Content to Mobile Devices
		Digital Phonorecord Deliveries of Music
		Aggregators
		Conclusion
		Qualifications for Compulsory License under the Digital Performance Right in Sound Recordings Act of 1995 (DPRA)
		1998 Digital Millennium Copyright Act (DMCA-SECTION 405)
	YouTube Music
		YouTube: Payments for Streaming
		YouTube as a Streaming Service in Comparison with Other Streaming Services
		Was YouTube Intended to Be a Music Website?
		Trends in YouTube Music and YouTube
		If I Upload My Video to YouTube, Do They Own It?
		Is YouTube Responsible for Copyright Infringement if Your Music Is Pirated on YouTube?
			YouTube Content ID and Strike Systems
			The YouTube Partner Program
		Do the Traditional Performing Rights Organizations (PROs) Have Agreements with YouTube?
			ASCAP Performance Royalties
		Downstream Issues for a Successful Music Video
			People Start Using Clips of Your Video in Their Videos
			People Start Uploading Parodies Based on Your Video
		Posting Cover Songs on YouTube
		Using YouTube for Promotion
		Using Established Platforms and Channels
		The Demonetization Process
		Tracking YouTube Data: Google Analytics
		Regulations of Views
		The Curious Experience of Chase Hoffberger of The Daily Dot
		YouTube and Music Piracy
		“Gangnam Style” Has Made Psy a Very Rich Man
		Conclusion
	International Copyright
		Copyright Laws
		Moral Rights
		National Treatment
			Duration of Copyright Protection
		Formalities
		Feel the Berne
		Universal Copyright Convention
		Other Treaties
			WIPO Treaties
		Foreign Royalties
		Digital Performance Rights in Sound Recordings
		Finally a Celestial Jukebox
		All Together Now: Harmonize
Music Publishing
	Performing Rights Organizations In the United States: An Overview
		ASCAP
		BMI
		SESAC
		Global Music Rights
		SoundExchange
		Copyright Law Underpinnings of Public Performing Rights
		Membership
			Advances to Songwriters and Publishers
			Collaboration
			Registration of Musical Compositions for Copyright and with Your PRO
			Example of How a PRO Club License Works
		Public Performances of Sound Recordings
		Blanket and Per Program Licenses
		Public Performance Rights Fees
			Payment of Royalties
				ASCAP
				BMI
				SESAC
				Global Music Rights
		How Public Performances Are Monitored
			Radio and Streaming
			Television
			Radio
			Live Performances
			Payments from Foreign PROs
			Public Performances of Sound Recordings in the Digital World
			Sound Recording Public Performance Royalties
			How Digital Transmission Services Obtain a Statutory Digital Sound Recording Public Performance License
		Grievance Procedures
		Conclusion
	Music Publishing
		Categories of Music Publishing Income
			Mechanical Royalties
		Dividing Mechanical Royalties among Songwriting Teams
		Controlled Compositions
		Collection of Mechanical Royalties
			Performance Rights Income
			Samples and Interpolations Income
			Synchronization Income
			Print Rights
			Lyric Reprints
			New Media
			Grand Rights
		Foreign Income
		Other Rights
			Sound Recording Performance Right
			Neighboring Rights
			Master Rights
		Types of Music Publishing Contracts
			Full Publishing Deal
			Co-publishing Deal
			Administration Deal
		Points of Negotiation
		Self-Publishing
		Finding a Good Publisher
		Conclusion
		Resources
Performing: Managers and Agents
	What a Manager Does
		What to Look for in a Manager
		The Manager’s Role
			Record Companies
			Scheduling
			Recording Habits
			Objectivity
		The Recording Team
			Record Company
			Artist Relations
			Promotion Representative
			Sales and Marketing
		Record Releases
		Touring
			Management Organizations
		Management Contracts
			Term of Contract
			Power of Attorney
			Percentages and Expenses
		Conclusion
	Analysis of a Personal Management Agreement
		Personal Managers
		Managers in Peril
		Personal Management Agreement
			1. Term
			2. Services
			3. Authority of Manager
			4. Commissions
			5. Loans and Advances
			6. Nonexclusivity
			7. Artist’s Career
			8. Advertising
			9. Agent
			10. Entire Agreement
			11. Legality
			12. Conflicting Interests
			13. Group Members
			14. Group Name
			15. Artist Representations and Warranties
			16. Scope
			17. Cure
			18. Assignment
			20. Notices
			21. Artist Warranties
			22. Arbitration
	Talent Agents: New Thinking on an Old Business
		What a Talent Agent Does
		The Importance of the Live Performance Market
		Types of Talent Agencies
			Boutique Agencies
			Full-Service Agencies
		What Do Talent Agents Earn?
			Payments to Artists
			Draw
			Clubs
			Concerts and Festivals
			Sponsorships
			Merchandising
		Who Signs the Performance Contract?
		When to Look for a Talent Agent
			What Should Artists Look for in a Talent Agent?
			What a Talent Agent Looks for in Artists
		How to Find a Talent Agent
		Future Trends
		Conclusion
		Contracts Between Artists and Talent Agents
			Commissions
			Deductions
			Term
			Territory
			Duties of Talent Agents
			Areas of Representation
			Responsible Agent and Key Man
			Termination
			Verbal Agreements
			Nonappearance Insurance
	Club Contracts
		Types of Clubs
			Approaching the Club
		Club Contracts
			Checklist of Important Items in a Club Contract
			Compensation
			Sound and Lights
			AFM Union Contracts
			Who Signs the Contract?
			Taxes
			When the Club Doesn’t Pay Up
		Conclusion
		Performance Agreement
		Performance Agreement Rider
		Sound Reinforcement Rider
	TV Talent Competitions: The Legacy of American Idol
		The History of TV Talent Competitions
		History of American Idol
		Idol Producers
		Differences between American Idol and Prior Vocalist Competition Shows
		Was American Idol Scripted?
		American Idol/X Factor UK: Simon Fuller v. Simon Cowell
		Disputes Regarding the Rights to Popstars, Pop Idol, American Idol, and X Factor
		How Shows Made Money
			Sponsors
			Revenue Deal between the Producers and Fox Broadcasting Company
			Ratings and Advertising
			How Format Licenses Generate Money
		Money and Show Participants
			Host and Judges’ Cash Compensation
			Prizes
			Contestant Exposure and Odds of Winning
			Earning Money on Tour
		Earning Money from Record Deals
		Litigation
		Conclusion
		Analysis of Vocal Competition Contracts
			Contestants’ Contracts with Show Producers
			Enforceability of the Idol Contracts
			Tying Up the Artist
			The Contestant Agreement Negotiation Process
			Contestant Services
			Grant of Rights from Contestant to Producers
			No Wages
			No Obligation by Producer
			Contestant Exclusivity to Idol
			Miscellaneous Provisions
			Contestant Eligibility
			Contestant Age Limitations
			Separation from Family and Friends
			Rules and Instructions
			Travel and Accommodations
			Voting System
			Background Checks
			Avoidance of Appearance of Impropriety
			Confidentiality
			Disqualification
			Drugs, Medications, Alcohol, Weapons
			Waivers Required of Immediate Family Members
			No Fraternizing
			Assumption of Risk; Waivers
Recording
	Independent Record Labels and Record Deals
		Indies in the Contemporary Market
		What is an Indie?
			Indie Market Share
		Categorizing Indies by Distributor
			Major-Distributed Labels
			Labels Distributed by Majors’ Independent Distribution Arms
			Independently Distributed Labels
			Self-distributed Labels
		Being on an Indie Label
			Signing New Artists
				Sales, Media, and Metrics
				Tour History
				The Artist’s Team
				The Music Itself
			Indie Budgets
				Recording Budgets
				Music Videos
				Tour Assistance
		Indie Deal Terms
			Royalties
				Traditional Royalty
				Net Profit Deals
				360 Deals/Provisions
			Advances and Budgets
			Contract Duration
			Accompanying Publishing and Merchandise Agreements
				Label-Affiliated Publishing Deals
				Label-Affiliated Merchandising Deals
				Cross-collateralization
			Ownership versus Licensing
			Upstream Clauses
		Finding the Label That’s Right for You
		Conclusion
	Recording and Distribution Contracts with Independent Labels
		Small-Label Advantages
		Contracts
		Distribution Deals
		Pressing and Distribution (P&D) Deals
		Production Deals
		Net Profits Deals
			Comparison of a 50-50 Net Profit Deal with a Royalty Deal
			Deal with a 50-50 Split of Net Profits
			Deal with 15% Royalty of Retail Sales Paid to Artist
		Example of 50-50 Deal Favorable to Artist
		Example of 50-50 Deal Favorable to Label
		Other Examples of 50-50 Contract Terms
		Arrangements on Digital Rights
		Conclusion
	Producer Agreements are Stupid
		What Is a Producer Agreement?
		The Negotiation Process
		Conclusion
		How to Negotiate a Long-Form Producer Agreement
		Long-Form Producer Agreement
			1. Engagement and Term
			2. Services
			3. Recording Procedure
			4. Recording Costs: Recoupment
			5. Advances
			6. Royalties
			7. Accountings
			8. Restrictions
			9. Mechanical Licenses
			10. Company’s Rights
			11. Representations and Warranties
			12. Indemnification
			13. Credit
			14. Failure of Performance
			15. Legal and Equitable Relief.
			16. Notices
			17. Definitions
			18. Miscellaneous
			19. Opportunity to Consult Independent Legal Counsel
	How 360 Deals Became Necessary and How To Negotiate Them
		Technology Transforms the Music Business—and Then Does it Again
		The Music Industry Adapts to its Changing Landscape with 360 Deals
		360 Deals
			Negotiating the 360 Deal Provisions of a Recording Agreement
			Final Thoughts on Leverage
		360 Contract Provisions and Commentary
	Social Media Law For Musicians
		Developing a Web Presence
			Website Development
			Copyright
			Music
			Images and Other Content
			Digital Millennium Copyright Act
			Trademarks
		Rights of Privacy and Publicity
			Right of Privacy: What the Law Says
			Use of Private Person’s Name, Likeness, or Image
			Use of a Photograph or Video
			Right of Publicity
		Defamation and Libel
		Your Social Media Presence
			The Importance of Your Brand
			Who Is in Charge?
			Don’t Do Something Online You Wouldn’t Do in Real Life
		Website Development Agreement
		License For Use Of Photograph On Website
	Royalty Statements: Audits and Lawsuits
		Royalty Statements
		Audits
		Suing
			Should You Sue?
			Retaining an Attorney
			Whom to Sue
			Theories of Recovery
			Discovery of Information
			Proving the Claim
			Should You Settle?
Resources
	Industry Directories
	Government Agencies
	Agencies, Organizations, Trade Associations and Conferences
Contributors
Credits
Index
About Jerome Headlands Press