THE INDUSTRY ENDORSED GUIDE TO THE UK MUSIC BUSINESS, FULLY REVISED AND UPDATED
INCLUDES:
Aimed at artists, songwriters, industry executives, lawyers, students and anyone who wants to know more about getting into the music business.
ANN HARRISON is a legal consultant at SSB Solicitors, a specialist boutique music company and was formerly head of the music group at a leading media and entertainment law firm.
When I started work in the music business I had very little idea how it worked. Record and publishing companies were a mystery to me. I looked for books that might help me but there weren’t many around. Those were mostly out of date or applied to the US and not to the UK music business. I had to learn from my colleagues as I went along. I was lucky in that they were very knowledgeable and very generous with their time.
Now there are many more sources of information available on the UK music business and there are many good full- and part-time media and law courses available to give you a head start. To accompany these I felt we needed an easy-to-read guide to how the business works from a legal viewpoint – one that explains what a publisher does, for example, and what copyright is. Many of the books on the business are written from the US perspective. I wanted to write one based on the UK music industry which could be read as a road map through the industry. Where I’ve used technical expressions I have tried to give a non-technical explanation alongside. This book is not, however, intended to be a substitute for legal textbooks on copyright, other intellectual property rights or contract. There are many good examples of these sorts of books around.
The music business is a dynamic one and each new edition involves a reworking of most of the chapters. This latest edition was no different. In particular, anything to do with new media is difficult to keep up to date. The chapter on digital uses has been completely rewritten, with a greater emphasis on streaming. The state of the recording industry is looked at in some detail as part of an overview of the industry generally and there have been changes in the live industry, on secondary ticketing in particular. The chapter on publishing has seen major re-writing as a result of some interesting new cases and legal developments particularly in the US and in relation to parody and fair dealing. The usually arcane world of collection societies has also undergone significant changes reflected in a rewrite of much of that chapter.
Wherever possible, I have tried to illustrate points with practical examples. I have to add a health warning that the examples produced and the guidelines given are mine alone and others may not agree or may have had different experiences.
We’ve all been fascinated by newspaper reports of artists in court over disputes with their ex-managers, record companies or even other members of the band. Are these reports accurate? Do these cases have any long-term effect? Do they matter? The facts of some of the more important cases have been highlighted, what was decided and the effects of these decisions on the music business. I’ve included several new cases throughout this edition, particularly in the area of sampling and band name disputes.
What I’ve tried to do is to let you in to some of the things I have learned over the last 34 years in the music business. There is, however, no substitute for legal advice on the particular facts of your case. Chapter 1 deals with choosing your advisers. Please read it. Good advisers will help to save you from what can be expensive mistakes. Most artists only have one chance of a successful career in this business – make sure you don’t lose it through poor advice.
In writing this book I hope I will be able to convey some of the excitement of the music business to you. I have used ‘he’ throughout. This is just convention and is not intended as a slur on female artists or on the many excellent women working at all levels in the music business. The law is correct to the best of my ability as at 31 December 2016.
How do you get into the music business as a performing artist or songwriter? How do you get your foot in the door and how and when do you start gathering your team of advisers around you?
Maybe you want to be a manager or wish to adopt the DIY approach and set up your own record label or publishing company. This book is all about understanding the music business, the deals and how you get started.
How do you get your work noticed? The idea is to create interest, a ‘buzz’ by whatever means you can. We’ll see later that lawyers and accountants can help you to get noticed but you also need to work out your own plan and make it unique to you. ‘Discoverability’ is the new word for it, but it means ‘how to rise above the noise’.
You can play as many gigs as you can and hope to be recognised by a scout on the lookout for a record company or music publisher or you can make a demo of your performances or songs and post it on a website like SoundCloud for peer review. You might also submit it to an A&R person direct or send him a link to your website. However, many companies, particularly the bigger ones, the ‘majors’, are refusing to accept unsolicited demos and many now only accept demos from a tried and tested or well-known source. Most companies also now ask for digital submissions or links to music. Check out their websites for their specific requirements.
There’s no guarantee of success. No one is ‘owed’ a living in this business. You have to earn it, often through sheer hard slog.
Many try to improve their chances by coming up with a previously untried marketing ploy. Nowadays, these seem to focus on viral online marketing strategies but anything which is newsworthy and creates media interest will do. As we’ll see later unusual crowd-funding ideas can also raise profile but I’d say that more than ever it is important to have good contacts and a good team of people to help you if you are looking for commercial success.
You can also shamelessly exploit any and all contacts you have with anyone who has even the remotest connection with the music business. You can pester these hapless souls to ‘get their mate to the next gig’ or to listen to your demo or visit your Facebook or YouTube page. This can improve your chances of at least getting your work listened to, but still isn’t any guarantee it will lead to a record or publishing deal.
The live side of the industry is increasingly important as traditional record sales have declined. Record and publishing companies send scouts out to find undiscovered talent playing in out-of-the-way pubs. Posting details of up-coming gigs on your website or a good quality videoclip of you performing live up on YouTube could greatly improve your chances of someone deciding to come out and see you live. Supporting a band already on the A&R radar will also help.
A&R people live a precarious existence. They are only as good as their last successful signing. So they tend to like to have their hunches about an artist confirmed by someone else whose opinion they respect. This could be someone in their own company but, somewhat surprisingly, they will often talk to A&R people from rival companies. You would think that if they found someone they thought was good they would keep it to themselves until the deal was done. Some do, but many seem to need to be convinced that they have got it right by talking to friends at other companies, even if this pushes up the cost of the deal when the rival company joins in the race to sign the same artist. For the artist this may be a dream come true. He can choose the company that works best for him, and his lawyer will negotiate between the companies to get a better deal. This is what we call using your bargaining power. The more bargaining power you have, the better your overall deal is likely to be. In the last couple of years, the trend has been for several successful artists to make their mark elsewhere before becoming big with a major record company. Keane were signed to BMG Music Publishing for two years before they got major record company interest in their brand of music. London Grammar with Ministry of Sound’s Metal & Dust Recordings label and Arctic Monkeys with Domino Records are other good examples of independent labels punching above their weight. Increasingly, A&R people largely adopt a cautious approach and want actual evidence of an artist’s ability to complete recording of an album and being able to promote it before they come on board. This can be a depressing thought for an artist just starting out, but it could also be seen as an opportunity to create and develop your own style on a smaller independent label first or DIY self-release. Indeed, one of the biggest growth areas of the business is that of independent labels making their own story and either feeding artists into the bigger labels or releasing records themselves before the acts are picked up by the bigger labels. An example of an artist who has made it big independently without being picked up by a major is Passenger who has released his records on a network of independent labels achieving Number 1 album status across Europe and now also beginning to break the US market.
The name an artist chooses is a vital part of his identity, his brand. It’s a very difficult thing to get right and it’s quite common for artists to go through various name changes before they settle on one they’re happy with. It should be memorable, because if you combine a good name with a clever logo, design or idea then you are already halfway to having the basis of a good marketing campaign. If it’s a name that you can do some wordplay with, so much the better.
Finding a good name is easier said than done. I’m sure you’ve sat around at some time in the pub after a beer or three and tried to come up with good band names. Despite all my advice on branding, I suspect that most artists choose their name for much more down-to-earth reasons, like it sounds cool, or it is the only one they can think of that is not naff and that no one else has already nabbed. Raiding books, old films and song titles are other good sources, for example, All About Eve, His Latest Flame and Janus Stark (from a comic). History is also a fertile source, The Levellers, Franz Ferdinand and The Boxer Rebellion being good examples.
You might decide on a name not knowing that anyone else has already claimed it. You may then invest a lot of time and maybe some money in starting to develop a reputation in that name. You’re not going to be very happy if you then find out that someone else has the same name.
So how do you check if someone else is already using a band name? There are a couple of easy and cheap means of doing this.
Use the Internet to make your search as wide as possible, using a good search engine to check if the name you’ve chosen appears and not just in relation to the UK but also worldwide.
You could apply to register a domain name and see if anyone has claimed any of the main top-line domain categories for that name. If it is available do register it quickly, but also think about your logo as increasingly Apps are replacing domains as the place to go for information.
There are companies who advertise online that they can protect your band name but often these are adverts for trade mark agents so be careful that you know what you are being offered and if there are any charges before using their services. A listing on a band register database doesn’t of itself give you special protection. If the same band name comes up on your online search that also doesn’t mean that the other band will automatically succeed in stopping you from using the same name. You have to also look at whether they have an existing name or reputation, whether they have registered a trade mark or a domain name, and whether the other band has a reputation in the same area of the business as you.
If you choose a name and another artist objects to you continuing to use it because it is the same as one they have been using for a while, they may sue you. This could be for a breach of their trade mark (see Chapter 8) but, if they haven’t registered a trade mark, they would have to argue that they had a reputation in the same area of music, in the same country as you and that you were creating confusion in the mind of the public and trading on their reputation. This is called ‘passing off’ (see Chapter 8). If they can establish these things (and that is not always easy to do) and they can also show that they are losing or are likely to lose out financially as a result, then they can ask the court to order you to stop using the name and also to award them financial compensation (damages) against you. They would have to establish a number of things, including an existing reputation. Just because a band has done a gig or two under the same name as you doesn’t necessarily mean that they have a reputation or that they can satisfy the other tests of ‘passing off’. You may have the greater reputation or the greater bargaining power; the other band may have split up or be about to do so. If you’ve already got a record deal or are about to release a single or album under that name, you may be able to persuade the other band that they are, in fact, trading on your reputation and that they should stop using the name. A word of warning, though, if you have a US label or intend to license recordings for sale in the US, it is quite likely that the US company will be unhappy at the existence of another artist with the same or a very similar name. They may well put considerable pressure on you either to change the name or to do a deal whereby you can definitively get the rights to use that name from the other artist. US labels, particularly majors, tend to be risk adverse and a potential threat to stop their sales will have them running scared.
In the US, the record company often makes it a condition of the record deal that it runs a trade mark search and charges you for it by adding the cost on to your account. If the search reveals another band or artist with the same name has already registered a trade mark, the record company will usually insist on you changing your name.
If you do find another artist with the same name, then you could do a deal with them to buy the right to use the name from them. You pay them an agreed sum and they stop using it, allowing you to carry on. If you’re going to do these sorts of deals you should also make sure that you get from them any domain name that they have registered in the band name and, if they have a trade mark, an agreement to assign the trade mark registration and any ongoing applications to you. Take specialist advice.
The law can be somewhat confusing on this question of band names as highlighted by these two band name cases.
The pop group Liberty argued that even if there was residual goodwill their activities could not be seen to interfere with the old Liberty as they were in different areas of music.
The Judge decided that on the facts, while it was ‘very close to the borderline’, there was a small residual goodwill that deserved protection. He granted an injunction against the new Liberty band’s continued use of the name. The band renamed itself Liberty X .
The Blue Case
In complete contrast, in June 2003 a case brought by the original band Blue – a Scottish rock group – came before the courts. Their last hit was in 1977 when a single by them reached number 18 in the charts. They had had a long career spanning 16 singles and 7 albums. They had a fan base and nowadays sold records mostly by mail order or over the Internet. The new Blue was a boy band formed in 2000 who had had 3 number one singles. The old Blue sued new Blue and its record company EMI/Virgin for substantial damages for passing off. The case came before Judge Laddie, who made it very clear at the beginning of the case that he found these claims somewhat dubious. He is quoted as saying, ‘Are you seriously saying that fans of one group would mistake one for the other?’ ‘One is aged like you and me, the other is a boy band.’ These are comments that could just as easily have been made in the Liberty case but different times, different outcomes. In this case, the early indication of the Judge’s view led to the two sides reaching an out-of-court settlement. Both bands were to be permitted to continue to use the same name.
One Direction reached an agreement with a US band of the same name. The US band claimed that they had formed in 2009 and released several albums together. The claim stated that Syco and Sony were made aware of the confusion in 2011, but chose to ignore the claimants. The UK band were sued for over $1m in damages and faced claims for a further three times the profits they had made. The UK group countersued, claiming that they owned the name. The agreement reached by the groups allows them both to continue using the One Direction name.
Let’s assume you’ve got a name, can legitimately use it and are getting some interest from the business. Record companies have in the past had their fingers burned by signing artists for large sums of money that they haven’t seen perform and then discovering that they can’t play or sing at all. So most record companies will insist on seeing you play live. If you are already playing the club circuit they may just turn up to a gig. If you aren’t then they may pay for the hire of a venue or more likely ask you to arrange one. This is called a showcase. The venue is likely to be either a club or a rehearsal studio. These showcases may be open to the public but more often they will be by invitation only. It might pay for you to get at least some of your mates/fans along so there are a few friendly faces there as an industry showcase can be a daunting affair.
You could hire a venue yourself and send invitations out to all the record companies. However, just because you’ve invited them doesn’t mean they’ll come. Don’t be at all surprised if they say they’re coming and then don’t show up. It’s a very fickle business. They probably got a better offer on the day. The more of a ‘buzz’ there is about you the more likely it is that they will turn up, as they won’t want to miss out on what could be ‘the next big thing’.
I once asked the MD of a major record company why he was paying for an artist to do a showcase which would be open to the public when he knew that the artist would then be seen by the A&R people from rival record companies. His answer was quite revealing. He said that he knew how far he was prepared to go on the deal and so was not worried that it would be hyped up. He felt that if this artist really wanted to be with his record company he wouldn’t be influenced by the interest from other companies. Confidence indeed. In fact, the artist did sign to his company and remained on the label for a number of albums.
If you are working with an independent label or production company it is likely that they will set up the showcases and invite along either a broad selection of bigger labels or only those with whom they have a special relationship, maybe ones for whom they already act as a talent out-source.
Here are some tips that may help you showcase your talents successfully. First, do your homework. Read the music press. Find out the current ‘happening’ venues, the places that regularly get written up in the music press. Pester that venue to give you a spot, even if it’s the opening spot, and get all your mates to come along so that it looks like you’ve already got a loyal following. You may need to start out in the clubs outside the main circuit and work your way in.
You should also find out what nights the venue features your kind of music. If you play radio-friendly, commercial pop you don’t want to get a gig on a heavy metal night.
Make sure the songs you play (your set) are a good cross-section of what you do. What goes down well with your mates in the local pub may not work for a more urban audience (but you’ll want to play one or two of the firm favourites to give you a confidence boost).
Be professional. Rehearse, rehearse, rehearse. Think about your image and style. Don’t send mixed messages. Think about your relationship with the audience. If yours is the ‘say nothing, the music will speak for itself’ style, that’s fine – but make sure you’re sending that message clearly to your audience. We all like a ‘personality’. If your band has one, make sure you use him or her to your best advantage.
Always tell your audience who you are at the beginning and end of your set. You’d think this was obvious but you’d be surprised how many gigs I’ve been to where it’s been impossible to tell who the artist is unless you’ve seen them before. The line-up of the bands on the night can change and no gig ever starts at the time it’s supposed to, so you can’t even make an intelligent guess. Make life easier for us – tell us clearly who you are, this is not the time for a shoegazing mumble.
Try to get your local press behind you. I know of one Nottingham band that did this very successfully. They made a fan of a local arts reporter who wrote a popular blog and kept him up to date on what they were up to and when they were playing. This made sure they got good reviews. A scout read the blog and went to the next gig, which was on the outer-London circuit. He liked what he saw and at the next gig the band took ‘rent-a-crowd’ with them and was spotted by an A&R man tipped off by the scout. A record deal followed. The local blogger was the first one they told – after their mums, of course. Followers of artists on Twitter have been alerted to gigs through Tweets. Also, no self-respecting artist these days is without a Facebook page with gig details on it or their own website and maybe also a blog, a SoundCloud, WeTransfer or Dropbox presence and plenty of shots on Instagram. They are actively posting details of their activities online, often via their own YouTube channel. If they have got mates who are good with a camera they are also putting video clips with their music on YouTube but more of this later in Chapter 7.
It’s a long haul and it needs determination and dedication to plug away on the gig circuit like this. Are there any short cuts? Yes, there are some. There are ‘battle of the bands’ competitions. If you get through to the final three or even win, then that will give you valuable exposure and should ensure a number of follow-up gigs in the local area and some useful publicity. They don’t often lead directly to deals, although, if you win, you may get free studio time to make a demo (see below). But there are also a number of less scrupulous operators out there who promise a recording or management contract if you win. There is often an entry fee and you may well find that the deal you are offered is either worthless or on such poor terms that it isn’t worth looking at. Remember if it seems too good to be true it probably is. Glastonbury has an Emerging Performers Competition for bands to play on one of its main stages. She Drew the Gun won in 2016. This initiative has helped artists like Charlene Soraia and Stornoway come to a wider audience. It’s open to UK and Irish acts and there is a fee for entry. In June 2016 Gilles Peterson launched a regional initiative to discover new acts called ‘Future Bubblers’. It’s aimed at discovering ten of the next generation of innovative, ‘outside the box’ musicians who might be excluded from the networks and opportunities of London.
Then, of course, there are online band competitions – such as those promoted by the web-based unsignedonly.com or the International Songwriting Competition, which features a special category for unpublished writers. There are also ‘open mike’ evenings at clubs, when anyone can turn up and ask to play one or two numbers. Tony Moore’s unsigned-acts nights at The Bedford pub in Balham, South London are a regular stopping-off spot for scouts. Tony Moore has also opened an additional live acoustic venue, The Regal Room, based at The Distillers in Fulham Palace Road, Hammersmith. Outside London, Night and Day, in Manchester, has regular local band showcases. The industry’s trade paper, Music Week, runs a showcase for the best unsigned and just-signed talent to be held four times a year at the venue ‘Under The Bridge’ in Chelsea. Use Your Ears also acts as a music industry advice portal, including lists of places holding open mic nights or check out openmicfinder.com/UK/ for a venue near you. A web search may well turn up others.
Music industry organisations such as the Performing Right Society Limited (PRS) or its US equivalents, The American Society of Composers and Publishers (ASCAP), or Broadcast Music, Inc. (BMI), sometimes arrange nights at a Central London venue to showcase two or three acts who are either unsigned or have signed a record deal but not a publishing deal (or vice versa). ASCAP Presents helps showcase unsigned acts around industry events in the US like SXSW in Austin Texas. More recently PRS has offered grants (Momentum) to help take artists to the next level, see prsformusic.com for more details and in late 2016 announced a tie-in with performing right society Public Performance Limited. Also in 2016 the Government committed to hand over up to £2.8m in grants to independent UK music companies until 2020 through a re-launch of the Music Export Growth Scheme. Sums of between £5,000 and £50,000 will be paid out to qualifying labels, management companies, distributors and artists.
This is a good result for the lobbying efforts by the UK recorded music industry, led by the BPI. Artists successfully supported to date include 2016 BRIT Awards winners, Catfish and the Bottlemen, Mercury Prize shortlisted act Eska and 2014 Mercury Prize winners Young Fathers.
There are also annual UK music industry conventions such as Liverpool Sound City and The Great Escape (Brighton) and the spin-off launched in 2016 – First Fifty. Attached to them are a series of showcases for unsigned acts. An armband system allows you to pay a fixed fee to see all the bands performing at the various venues. You could get lucky and meet one or two A&R people and get your demo to them. Remember, however, that they get given many promo CDs, often late at night and possibly after several pints of beer, and they will probably need to be reminded who you are in a follow-up call or email a few days later. If you want to get on a showcase then you need to follow the submissions policy on their websites. Interestingly the criteria for what The Great Escape is looking for in a potential artist include ‘a strong online presence’, ‘an original and accessible sound’ as well as a ‘sense of excitement around the band’ in the lead-up to the performance. High standards indeed.
If you’re chosen for one of the unsigned showcases, it should guarantee that at least one A&R person will be at your gig. The Great Escape saw an early performance by Adele in 2007. The now defunct In The City showcase helped break acts like Suede, Oasis and Muse.
Liverpool Sound City has been an early launchpad for acts as diverse as Grimes and Ed Sheeran and its overseas made missions help emerging artists access other markets.
For most people, making progress in the music business means having a demo recording of your work. This is your calling card, your way of introducing people to your work. It should be recorded to the best standard you can. A home studio recorded track, or one made on college facilities, may be fine if you are skilled enough in recording techniques and can play all the instruments but many people end up trying to get some time in a commercial studio.
How do you afford to make a recording in a commercial studio if you haven’t any money? One way is to beg ‘down time’ from your local recording studio. This is time when the studio is not being hired out commercially. It may be at really unsociable hours such as 2 a.m. to 8 a.m. But who needs sleep when you’ve got a record deal to get?
The studio may give you the time cheaply or even free, but they may let you have the time in return for promises of what they will get when you get your first deal. The studio owner may want some of the income (the royalty) you earn from the sale of your records. This is sometimes called an override royalty. This is fair if you get a deal using recordings made at the studio, but take care that the studio is not asking for too much. A 1–1.5% override royalty is usually enough. By that I mean that if you are offered an 18% royalty you have to give 1–1.5% to the studio owner, leaving you with 16.5–17%. Some studios try to get royalties on your second and third album too. They argue that you wouldn’t have got your chance to record at all without their generosity. This is true, but there comes a time when your success has nothing to do with that original generosity. One album is plenty in most cases or if it goes beyond that then the royalty percentage should reduce to say 0.5–0.75%.
The studio may also want a guarantee that you use their facilities when you make your album. Or the studio owner may want to produce your first commercial album. You should be careful about agreeing to these types of conditions. Record companies don’t usually like these kinds of package deals on studio and producer. They like to have some say on these things themselves. If the producer is a proven talent they may be less concerned but you should try and build in flexibility.
The demo should feature a good cross-section of your work. Most people think that it should contain no more than three or four different pieces, with your best one first, your second-best one last and contrasting style pieces in the middle, but be careful of sending a confusing message by mixing too many different styles on one recording. The opening number should have immediate impact in case the listener fast-forwards it before you’ve got into your stride. Many A&R people listen to demos in their car or on their laptop. If you don’t grab their attention, they’ll move on to the next track or to another artist altogether. If you are sending a CD, then the case and the CD itself should both contain details of who you are, the names of the pieces, who wrote them and, most importantly, a contact number, otherwise, when, inevitably, the case gets separated from the CD, there is no way of telling who the band are and how to get hold of them. Most submissions are by MP3 or an online link to a service like Dropbox or SoundCloud and there it is important that the file name is distinctive and that the metatags on the recording itself identify the artist and the name of the tracks. If you can include an email or webpage contact address so much the better. Make yourself as easy as possible to find. When websites like MySpace, Facebook, SoundCloud and YouTube first began to offer new music they were such a novelty that it was an easy place to get yourself noticed and A&R people used them as a convenient place to talent search. Now practically every artist on these sites has a track to sell or download and rising above the rest is now a serious challenge. Online music sharing sites have become the convenient way for A&R people to hear new tracks and find out more about an artist before deciding whether or not to attend a gig but they are no longer such an easy place to get spotted in the first place. A video as opposed to still photographs is now becoming a ‘must-have’, with as good a quality as you can make and also some social networking ‘likes’, ‘plays’, ‘streams’ or real ‘followers’.
These kinds of deals go in and out of popularity. They have largely been overtaken by the production deal, but they are still used where someone just wants to find a deal and not be further involved at any level. A studio owner, producer, manager or an established writer that you may be working with may like what they hear but may not have the resources or the inclination to sign you up to a record deal themselves. They may also not wish to become involved in your career longer term as a manager, but might spot an opportunity to use their contacts to further your and their own prospects. Such people might offer to find a deal for you and, if you agree in principle, they may then want you to sign a finder’s agreement.
This is usually a short document where you appoint them for a period of time to get you a record or publishing deal. The period varies from six months up to eighteen months and may be non-exclusive, in which case the period is of less concern, or exclusive, in which case you might want to keep the period quite short. On an exclusive deal you pass through any interest you get to the finder who is in overall charge. If it’s non-exclusive you and others can go on looking for a deal but you need to have a mechanism for how to tell who actually made the successful introduction. This is why most finders favour an exclusive arrangement.
If the finder gets a deal within the agreed time span that usually ends the ongoing relationship between you and the finder. Occasionally, however, it changes into a different type of deal such as that of artist/manager, artist/producer or co-writer.
The fee that the finder gets varies. It may be a percentage of what you get on signing the deal, a percentage of all monies paid you in the first contract period of the deal, or a share of these monies and of future royalties. The percentage is usually somewhere between 5% and 10%, but higher figures are possible depending on the services they are providing. Sometimes the finder argues for a percentage of monies beyond the initial contract period. This is less usual and I would want to see strong reasons to justify that and even then might well argue for the percentage to be reduced to say 2.5–5%.
If an A&R man gets to hear your music through a demo or indeed at a live gig and has a good initial impression, he will undoubtedly want to hear more.
If this is not a situation where there is an existing production company with access to studio facilities, the A&R man may pay for some studio time for you to record more material, or to try out different versions of what you’ve already recorded on your demo, or work with selected producers or writers. In which case he may offer you a demo deal. This has to be distinguished from a development deal of which more in Chapter 3.
The deal will usually guarantee you a certain amount of time in a professional or in-house recording studio. Some record and publishing companies have their own studio facilities, which they may offer to make available. Perhaps you shouldn’t look a gift horse in the mouth, but if the studio doesn’t have the equipment you need to show yourself off to best advantage you should say so, and either ask for that equipment to be hired in or ask to go into a commercial studio. Cheeky, yes, but you can do it politely – it’s your chance, so don’t blow it.
The record or publishing company will probably expect to own the copyright in what you record (see Chapter 4) and to have the right to control what happens to the recording. However, some major record labels offer more flexible arrangements whereby in certain circumstances you get to regain ownership of the recordings. A record company will not usually expect to own rights in the song but a music publisher might. Try to take advice before you agree to give away rights in the song. At the very least they shouldn’t own the song unless they offer you a proper publishing deal (see Chapter 4). The company offering you the deal will also usually want to own the physical recording or ‘master’. This is fine as long as they don’t stop you recording the same song for someone else if they don’t want to take things further. They should also agree that they won’t do anything with the master without first getting your permission. This is important. When you finally sign your record deal, you will be asked to confirm that no one else has the right to release recordings of your performances. Your record company will not find it funny if a rival company releases the very track that they had planned as your first single. The company who paid for the demo will usually agree that you can play it to other companies if they decide not to offer you a deal within a reasonable period of time.
The record or publishing company will normally want some exclusivity in return for the studio time they are giving you. They may want you to agree not to make demos for anyone else or not to negotiate with another company for a period of time.
They may be slightly more flexible and want the right of first negotiation or refusal. This means that they will want either to have the first chance to try to negotiate a deal with you or they will want to have the right to say yes or no first before you sign to another company. This is a difficult call. You will no doubt be excited and perhaps desperate not to risk losing the deal but, before agreeing to exclusivity or these negotiating options, you need to be sure that the exclusive time period is not too long. If they tie you up for months you may miss your moment. If they have first negotiating or rejection rights, then they should tell you as soon as possible where you stand. If they’re not interested, then you need to move on as quickly as possible.
Bear in mind, though, that the record company has to go through a number of stages before they can make a decision. They have to listen to the recording, probably then discuss it at an A&R meeting and then maybe also with their immediate bosses or even overseas colleagues. All this takes time and they may not want to risk losing you to a rival company. So you need to get a balance between the needs of the two sides.
Don’t be surprised or depressed if, after you make the demo, the company decides not to offer you a deal. I know several artists who got demo time from two or three record companies and ended up with an excellent set of demos that they took to another company who then signed them up. What you don’t want to happen is for people to feel that you’ve been around for a while and are sounding a bit stale. This is a difficult balance to strike.
Chapter 3