cover

Contents

Cover

About the Book

About the Author

Title Page

Author’s Note

Preface

Introduction

1Getting Started

INTRODUCTION

CREATING A BUZZ

THE ARTIST NAME

SHOWCASING YOUR TALENT

PRESENTING YOURSELF WELL

SHORT CUTS

THE DEMO RECORDING

STUDIO DEALS

FINDER’S AGREEMENT

DEMO DEAL

GETTING HELP AND PUTTING TOGETHER YOUR TEAM

THE LAWYER

FINDING A LAWYER

General

Directories

Managers and accountants

Other bands

How do you go about choosing and employing a lawyer?

Conflicts of interest

Beauty parades

What does your lawyer do for you?

New breed of lawyers

When should you get a lawyer?

ACCOUNTANTS

The Institutes

Directories

Music Managers Forum (MMF)

Lawyers

Other sources of information

How to choose an accountant

Business managers

How do they charge?

What does an accountant do?

Can your accountant help you get a record deal?

CONCLUSIONS

2Management Deals

INTRODUCTION

HOW TO FIND A MANAGER

Directories

Music Managers Forum (MMF)

Recommendations

Lawyers and accountants

Surgeries

A&R contacts

Managers

Trial period

The legal principles

WHAT TO LOOK FOR IN A MANAGER

IS IT ESSENTIAL TO HAVE AN EXPERIENCED MANAGER?

QUALITIES TO LOOK FOR IN A MANAGER

WHAT DOES A MANAGER DO FOR YOU?

PERSONAL MANAGERS

BUSINESS MANAGERS

PERSONAL ASSISTANTS

FIDUCIARY DUTIES AND PROBLEMS WITH BANDS

NEW BUSINESS MODELS

WHAT IS IN A MANAGEMENT CONTRACT?

Independent legal advice

Territory

Activities covered

Exclusivity

Key-man provisions

How long should the contract run?

Hurdles

Album cycles

Ending the term early

THE MANAGER’S ROLE

What is the manager paid?

Percentage of what?

Post-term commission

What is commissionable?

How long should the manager continue to receive commission?

What happens if there’s no written contract?

Who collects the money?

Expenses

Tax

Signing agreements

CONCLUSIONS

3What Is A Good Record Deal?

INTRODUCTION

THE STATE OF THE INDUSTRY

THE HYPE OF THE MILLION-POUND RECORD SIGNING

THE LEGAL PRINCIPLES

Restraint of trade

CREATIVE CONTROL VERSUS LARGE ADVANCES

Do you go for the money or try to protect the integrity of your art?

TYPES OF DEAL

LICENCE DEALS

Legal principles and definitions

Licence versus assignment

Exclusive and non-exclusive deals

The licence term

Territory

Options

EXCLUSIVE RECORDING CONTRACT

A fair deal

Term of the contract

Why is it only the record company that has options?

Why can’t you get your copyright back?

How many options should the record company have for future albums?

Two-album firm deals

Territory and split-territory deals

NEW FORMS OF RECORD DEAL

Development deal

360-degree deals

Production deals

Alternative sources of funding

OTHER ASPECTS OF RECORDING CONTRACTS

DELIVERY REQUIREMENTS – MINIMUM COMMITMENT

ADVANCES

What’s a good advance on an exclusive recording agreement?

Min-max formula

Payment terms

Costs-inclusive advances

RECORD BUDGETS

ROYALTIES

Retail versus dealer price

What percentage of sales

Packaging and other deductions

What’s a good royalty?

RELEASE COMMITMENTS

Accounting

WHAT HAPPENS IN A PRODUCTION DEAL WHEN A BIGGER COMPANY COMES ALONG?

CONCLUSIONS

4What Is A Good Publishing Deal?

INTRODUCTION

STATE OF THE BUSINESS

HOW TO FIND A MUSIC PUBLISHER

WHAT DOES A PUBLISHER DO?

WHAT ARE MUSIC PUBLISHING RIGHTS?

HOW DO YOU PROVE THAT YOU HAVE COPYRIGHT IN A WORK?

WHO OWNS THESE RIGHTS?

DURATION OF COPYRIGHT

WHAT RIGHTS COME WITH OWNERSHIP OF COPYRIGHT?

WHERE DOES THE MONEY COME FROM?

Mechanical licences and royalties

Controlled compositions

Synchronisation licences and royalties

Performing rights

Print

Grand rights

RECORD DEAL BEFORE PUBLISHING?

TYPES OF PUBLISHING DEAL

THE ADMINISTRATION DEAL

THE SUB-PUBLISHING DEAL

What does a sub-publisher do?

THE SINGLE-SONG ASSIGNMENT

EXCLUSIVE PUBLISHING AGREEMENT

RESTRAINT OF TRADE

WHAT IS IN A TYPICAL PUBLISHING CONTRACT

Exclusivity

Rights granted

Territory

Rights Period

Term

Rolling contracts

Minimum commitment

Advances

Royalties

Synchronisation and cover royalties

Performing income

Accounting

WHAT CAN YOU EXPECT FROM A PUBLISHER UNDER AN EXCLUSIVE PUBLISHING AGREEMENT?

MORAL RIGHTS AND CREATIVE CONTROL

WHAT TYPE OF DEAL SHOULD YOU DO?

NEW BUSINESS MODELS

CONCLUSIONS

5Getting a Record Made

INTRODUCTION

PRODUCTION DEALS VERSUS DIRECT SIGNINGS

PRODUCTION DEALS

What is a production deal?

What’s in it for the larger record company?

What’s in it for the production company?

What’s in it for the artist?

FINDING A STUDIO

Studio package deals

THE RECORDING BUDGET

MASTERING AND DIGITISATION COSTS

THE PRODUCER

Fee or advance

Royalty

Recoupment of costs

Who does the contract?

Remix royalty reduction

Credits

Standard of work

Rights

Producer’s duties

Mixing

Mix contracts

Fees and advances

Royalties

Rights

MASTERING

DELIVERY REQUIREMENTS

ARTWORK

CONCLUSIONS

6Manufacture and Distribution

INTRODUCTION

MANUFACTURING

P&D DEALS

MAJORS VERSUS INDIES

CATALOGUE OR SINGLE ITEM DISTRIBUTION DEAL

EXCLUSIVE VERSUS NON-EXCLUSIVE

Term

Territory

Rights granted

Price

Payment terms

Retention of title

Advances

CONCLUSIONS

7Digital Downloads, Streaming and Marketing

INTRODUCTION

OVERVIEW

REPRODUCTION AND DISTRIBUTION

STREAMING AND ONLINE BROADCASTING

RECORD COMPANIES IN THE DIGITAL WORLD

Consolidation

Cost-cutting

Lower-value deals

New forms of marketing

PIRACY

ANTI-PIRACY MEASURES AND DIGITAL RIGHTS MANAGEMENT

Technological methods

Education

Legislation

GOWERS REVIEW AND COPYRIGHT EXTENSION

NEW BUSINESS MODELS

Track downloads

Subscription services

Ad-funded streaming services

Paying the artist

Net receipts

Royalty basis

Deductions

PHYSICAL CDS

MOBILES AND MOBILE MUSIC PLAYERS

MOVE AWAY FROM ALBUMS

SOCIAL NETWORKING SITES AND RECOMMENDATIONS

MARKETING ONLINE

Official websites

WEBSITE DESIGN RIGHTS AND COPYRIGHT

HOSTING AGREEMENT

DATA PROTECTION

DESIGN

RISING ABOVE THE NOISE

CONCLUSIONS

8Branding, Marketing, Merchandising

INTRODUCTION

MARKETING

ARTWORK

PHOTOGRAPHS AND BIOGRAPHIES

IN-HOUSE OR EXTERNAL MARKETING

TV ADVERTISING

TV AND RADIO PLUGGERS

WHAT DO YOU PAY EXTERNAL PLUGGERS AND PRESS PEOPLE?

Retainers

Fixed fees

Bonuses

Royalties

Where do you find them?

Do they want a contract?

EPQs

VIDEOGRAMS

LONG-FORM DVDS

Rights

Royalty

BRANDING

BRANDING OF ARTISTS

MERCHANDISING DEALS

HOW DO YOU GO ABOUT GETTING A TRADE MARK?

How to apply for a trade mark

PASSING OFF

OTHER REMEDIES

CONCLUSIONS ON PROTECTING YOUR NAME

UNAUTHORISED, UNOFFICIAL MERCHANDISE

HOW DO YOU GO ABOUT GETTING A MERCHANDISING DEAL?

THE MERCHANDISING CONTRACT

WHAT IS IN A TYPICAL MERCHANDISING DEAL?

Territory

Term

Rights granted

Quality control

Methods of distribution

Advances and guaranteed minimum payments

Royalties and licence fees

Accounting

Trade mark and copyright notices

Termination rights

Enforcement

360-degree models

CONCLUSIONS

9Sponsorship

INTRODUCTION

HOW DO YOU FIND A SPONSOR?

SPONSORSHIP AGENTS

What do they charge?

ETHICAL CONSIDERATIONS

SCOPE OF THE SPONSORSHIP DEAL

Exclusivity

WHAT IS IN A TYPICAL SPONSORSHIP DEAL?

The services

Exclusivity

Territory

Creative control

Term

Banner advertising at venues

Meet and greets

Freebies and promotional activities

Trade mark licences and goodwill

Payment

CONCLUSIONS

10Touring

INTRODUCTION

NEW BUSINESS MODELS

MADONNA AND LIVE NATION

HMV AND MAMA GROUP

GETTING STARTED

GETTING A BOOKING AGENT

HOW DO YOU FIND A BOOKING AGENT?

WHAT’S IN A BOOKING AGENCY CONTRACT?

THE CONDUCT OF EMPLOYMENT AGENCIES AND EMPLOYMENT BUSINESS REGULATIONS 2003

WHAT IS IN A BOOKING AGENCY CONTRACT?

Exclusivity

Territory

Term

The booking agent’s duties

Your duties

The fee

Accounting

Assignment and key-man provisions

PROMOTERS

WHAT DO PROMOTERS DO?

WHAT’S IN A PROMOTERS CONTRACT

Your obligations

Promoter’s obligations

The Licensing Act

The Private Security Industry (Licences) Regulations 2004

Artist riders

Fees

Payment and accounting

Other income

Restrictions

GETTING FUNDING FOR LIVE WORK

TOUR SUPPORT

How much tour support will you need?

OTHER ISSUES

Tax planning

Publicising the tour

OTHER PERSONNEL

Tour manager

Sound and lighting engineers

Backing band and session musicians

Conclusions

11Band Arrangements

INTRODUCTION

WHO OWNS THE BAND NAME?

Ownership

Who within the band owns the name?

BAND STRUCTURES

LIMITED COMPANY

PARTNERSHIP

SERVICE AGREEMENTS

BAND INCOME

ACCOUNTING AND TAX

LEAVING MEMBER PROVISIONS

WHAT HAPPENS TO A BAND’S ASSETS ON A SPLIT?

CONCLUSIONS

12Moral Rights and the Privacy of the Individual

INTRODUCTION

WHAT ARE THESE RIGHTS?

THE RIGHT OF PATERNITY

Assertion of the right

THE INTEGRITY RIGHT

FALSE ATTRIBUTION

PRIVACY OF PHOTOGRAPHS

OWNERSHIP OF RIGHTS

DURATION OF RIGHTS

THE CATCH

CONCLUSIONS

PRIVACY OF THE INDIVIDUAL

SOCIAL NETWORKING SITES

CONFIDENTIALITY AGREEMENTS

HARASSMENT ACTIONS

CONCLUSIONS

13Sampling and Plagiarism

INTRODUCTION

HOW MUCH IS A SAMPLE?

HOW DO YOU CLEAR A SAMPLE?

WHEN SHOULD YOU SEEK PERMISSION?

WHERE DO YOU GO TO CLEAR SAMPLES?

HOW MUCH DOES IT COST?

WHAT HAPPENS IF YOU DON’T CLEAR SOMETHING?

PLAGIARISM

SOUND-ALIKES

SESSION MUSICIANS’ CLAIMS

CONCLUSIONS

14Piracy

INTRODUCTION

WHAT IS PIRACY?

Counterfeit recordings

Pirate recordings

Bootlegs

HOW DO YOU SPOT A PHYSICAL COUNTERFEIT, PIRATE OR BOOTLEG RECORD?

Counterfeits

Bootlegs

HOW CAN YOU STOP PIRACY?

Copyright

Moral rights

Trade marks

Trade description

ENFORCEMENT

Civil action

Criminal action

Private criminal prosecutions

Trading standards officers

SOME FURTHER PIRACY CASES

ANTI-PIRACY UNIT (APU)

THE INTERNATIONAL FEDERATION OF THE PHONOGRAPHIC INDUSTRY (IFPI)

OTHER BODIES

15Collection Societies

INTRODUCTION

WHAT ARE THE COLLECTION SOCIETIES?

BLANKET LICENCES

ADMINISTRATION

RIGHTS GRANTED

OTHER COLLECTIVE BODIES

THE SOCIETIES

THE BRITISH PHONOGRAPHIC INSTITUTE (BPI)

PHONOGRAPHIC PERFORMANCE LIMITED (PPL)

VIDEO PERFORMANCE LIMITED (VPL)

ASSOCIATION OF INDEPENDENT MUSIC LIMITED (AIM)

THE PERFORMING RIGHT SOCIETY LIMITED (PRS)

THE MECHANICAL COPYRIGHT PROTECTION SOCIETY LIMITED (MCPS)

16Useful Addresses

Index

Acknowledgements

Copyright

Music: The Business

The Essential Guide to the Law and the Deals

Fully Revised and Updated 5th Edition

Ann Harrison

About the Book

Fully revised and updated including the latest information on the impact of digital technology, Music: The Business remains the essential reference guide to the business of music.

Whether you’re a recording artist, songwriter, music business manager, industry executive, publisher, journalist, media student, accountant, lawyer or are simply fascinated by the music industry, Music: The Business will tell you what you need to know about how the UK music industry works.

Authoritative and indispensable, Ann Harrison’s essential work answers all the questions, decodes the jargon, gives the facts behind the headlines and reveals the real figures underlying the multi-million pound deals. Citing case studies of the biggest recording artists and songwriters, Ann uses her extensive expertise as a music lawyer to describe the precedents that have shaped the law today, to outline what you can expect to find in music business contracts and, in an age of rapid technological change, to show the options for the future.

From recording and publishing deals, making a record, manufacture, distribution and marketing, to ways to harness the new media, branding, merchandising, moral rights and working in the music industry, this fascinating, practical and comprehensive guide could be one of the most important books you ever buy.

About the Author

Ann Harrison runs her own successful legal consultancy. Formerly she was head of the music group at a leading media and entertainment law firm. Ann specialises in copyright and contract law mainly for the ‘talent’ and entrepreneurial end of the business: artists, songwriters, producers, managers, independent record labels and publishers.

The law in this book is correct to the best of my knowledge as of 31 January 2011, but the views I expound are mine alone. Although I have tried to give practical examples throughout the book, everyone’s circumstances are different, as are the facts of every case. The book is not a substitute for independent legal advice given to you personally. No liability can be accepted by me or Virgin Books for anything done in reliance on the matters referred to in this book.

Ann Harrison

Preface

I qualified as a solicitor in 1983 and began working for a law firm that did general work but also had a good reputation as entertainment lawyers. At first I just did general commercial litigation but found that I was naturally attracted to the entertainment cases. Somehow they seemed more ‘sexy’.

When I moved to another firm to get more experience of the entertainment business I made a big mistake. The firm I joined was good at entertainment work, but in fact wanted someone to clear people off a large holiday camp in the North of England. I spent most of the next two years running 180 separate property cases with no connection to the entertainment business at all.

Luckily for me I’d kept in touch with a former flatmate who had become a very successful music lawyer at Harbottle & Lewis. He spent some time trying to persuade me to do the same work that he did. I thought my future lay in sorting out disputes in court and wasn’t convinced. Then the law firm I was working for closed and that decided it. Luckily, the job at Harbottle & Lewis was still open and I joined the music group in March 1988.

At first I was convinced that this was the second big mistake I had made in my career. My litigation training made it almost impossible for me to appear friendly towards lawyers on the other side, signing letters ‘Kind regards’ when often I could cheerfully have strangled them. I did get over that and stayed for about fifteen years, eventually becoming a full partner and head of the music group.

In May 2003 I left that firm to set up my own legal consultancy business, Harrisons Entertainment Law Limited. Yes, the acronym does mean that I am truly a lawyer from HELL. I wanted to have the freedom to continue to represent artists and songwriters, managers and small record labels and publishers. I like working for the creative end of the business and now have the freedom to do so on my own terms. I’ve been lucky over the last 27 years to work with some of the leading players in the business. My clients come from every part of the music spectrum and are at all stages of their careers.

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 January 2011.

Ann Harrison

January 2011

Introduction

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. It felt a little like trying to do a very hard jigsaw puzzle without the benefit of a picture on the lid of the box. 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 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, under the new title of Digital Downloads, Streaming and Marketing, as have the chapters on Touring, Getting a Record Made, Branding, Marketing, Merchandising and Sponsorship. The general section on marketing has been updated with many new examples and has moved to the Branding, Marketing, Merchandising chapter. There have also been significant changes in the various attempts to control piracy. The law on privacy of the individual has settled down into a more consistent approach with a growing body of case law.

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.

What I’ve tried to do is to let you in to some of the things I have learned over the last 27 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.

CHAPTER 1

Getting Started

INTRODUCTION

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 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.

CREATING A BUZZ

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.

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 send it to an A&R person and hope. However, more and more companies, particularly the bigger ones, the ‘majors’, are refusing to accept unsolicited demos. They are following their US colleagues in this respect and many now only accept demos from a tried and tested or well-known source. Most now ask for MP3 submissions or Internet links to music rather than CDs through the post.

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 I did hear recently about a woman who was asked if she wanted to accompany a writer on a book tour to promote the writer’s novel about the music business. Well, why not? Novel, indeed? It’s newsworthy and should create some media interest. Occasionally, you hear of artists pitching up at record companies with their guitar and doing an impromptu audition at which they are ‘discovered’ but the chances are very slim. These days, you’d be lucky to get past the security guards.

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 MySpace 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 important and increasingly so in the last few years as traditional record sales have declined. Record and publishing companies send scouts out to find undiscovered talent playing in out-of-the-way pubs. If you happen to be based outside the M25, your chances of being spotted are slimmer than if you are in London. However, there are other areas of the country that get the attention of scouts – Sheffield, Liverpool, Manchester, Birmingham, Bristol, South Wales and Glasgow among them. Sometimes you get an ambitious scout who goes and checks out what is happening in a part of the country not on the traditional circuit. When this happens you can get a rash of signings from that area. Who knows, your area could be next.

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 about three years before they got a record company interested in their brand of music. The Kaiser Chiefs with B-Unique and Franz Ferdinand with Domino Records are other good examples of independent labels punching above their weight. More and more it seems that A&R people at major record companies want actual evidence of an artist’s ability to complete recording an album and promote it before they come on board. This can be a depressing thought for a band 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. 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 made it big independently before being picked up by a major is Sounds Under Radio who was the only unsigned artist on the Spider-Man 3 film soundtrack and went on to sign a multi-album deal with Epic Records.

THE ARTIST NAME

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 some easy and cheap means of doing this. First, see if your nearest large record store will let you have access to their online or printed catalogue listing all available records. Have a look if the name you want to use appears – the lists are usually alphabetical by artist name so that’s not as horrible a task as it might seem.

Use the Internet to widen your search, using a good search engine to check if the name you’ve chosen appears. You could just do a UK search but if you plan to sell records overseas (and you do, don’t you?) then you should do a worldwide search.

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.

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 already registered as a trade mark, the record company will usually insist on you changing your name.

If you do find another band 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 a small amount (or a large amount if you really want the name) 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.

The law can be somewhat confusing on this question of band names as highlighted by two band name cases. The first involves the members of Liberty, the band formed from the runners-up in the television programme Popstars and the second a Scottish rock group and the pop boy band both called Blue. The decisions in the two cases could not have been more different.


The Liberty X Case (Keith Floyd Sutherland v. V2 Music and others, [2002] Chancery Div)

V2 Music, the record company, had an exclusive recording contract with the members of Liberty and was preparing to release and promote their first album. The claimants were a funk band formed in the late 1980s who also went by the name Liberty. This band had had a lot of publicity and played a number of live concerts in the period up to 1996 but never got a record contract. Their three independent releases made between 1992 and 1995 sold only a few thousand copies. The public interest in them had become virtually nonexistent by the mid-1990s, although they kept going in the business, where they were known and respected, and appeared as session musicians on other people’s work.

The question was whether they had sufficient residual goodwill left in 2001 to be entitled to be protected against passing off.

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 found that the amount of residual goodwill had to be more than trivial which was a question of fact. The Judge decided that on the facts, while the case 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 and went on to commercial success.



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 eighteen in the charts. They had had a long career spanning sixteen singles and seven 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 three number one singles. The old Blue sued new Blue and its record company EMI/Virgin for substantial damages for passing off, arguing that there was confusion over the name leading to damage to their reputation and recording career. The case came before Judge Laddie, who is known for his forthright approach. He 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?’ The Judge also commented on the difference in their appearance saying that ‘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 having discussions outside the court which resulted in an out-of-court settlement. Both bands were to be permitted to continue to use the same name. Old Blue was ordered to pay the costs of new Blue who agreed not to enforce this for so long as old Blue didn’t try to apply to register a trade mark or otherwise try to regularise ownership of the name.


SHOWCASING YOUR TALENT

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. This was a particular issue in the dance/techno era of the 1980s and early 1990s when many groups were producer led and fronted by dancers rather than true performers. 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 will either be 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.

PRESENTING YOURSELF WELL

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 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 shoe-gazing 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 the arts reporter on the local newspaper 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 one of these and went to the next gig, which was on the outer-London circuit. 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 reporter was the first one they told – after their mums, of course. In an innovative marketing spin of the kind I was advocating earlier, The Other used SMS to let fans know of their next gig, relying on word of mouth and multiple texts to ensure a good turn-out at their ‘secret’ gigs and attention from the press for their innovative technique. It’s a wonder that they didn’t go further and sign up a sponsorship deal with a telecoms company for a cut of the SMS charges. The band Pulled Apart By Horses did a similar thing for their first ‘secret’ gig in Leeds in 2008. More recently, 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 and maybe also a blog but more of this later.

SHORT CUTS

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 here). 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. This initiative has helped bands like Scouting For Girls and Stornoway come to a wider audience. It’s open to UK and Irish acts and there is a fee for entry. The under-18s market is booming with venues turning over their clubs to promoters of special gigs aimed at the younger audience and obviously without the booze, and there is a popular Underage Summer Festival in East London, which in 2010 featured Ellie Goulding and Professor Green amongst many more.

Then, of course, there are online band competitions – such as those promoted by the web-based slicethepie.com. For more on these social networking sites and different use of technology, see Chapter 7.

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 also opened an additional live acoustic venue, The Regal Room, in December 2006, based at The Distillers in Fulham Palace Road, Hammersmith. Outside London, The Castle Hotel and Night and Day, both in Manchester, fulfil a similar role. There may well be similar venues in your home town. Make it your job to find them out and investigate if they are worth doing.

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), regularly 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 sends out a CD containing a track by each of the acts it’s promoting. These are popular with A&R people because someone has already filtered out a lot of the rubbish for them.

I have recently come across a website called Use Your Ears (www.useyourears.co.uk), which contains what looks to be a useful cross-section of information and links to services. It includes a list of places holding open mic nights.

There is also an annual UK music industry convention called ‘In the City’. Attached to it is a series of showcases for unsigned acts at venues in the city where the conference is being held, usually Manchester but it does move around. It’s quite expensive to register for the conference but it’s often possible to get into the bar of the main conference hotel where the executives meet to relax. An armband system has also been introduced where you pay a fixed fee to see all the bands performing at the various venues. This may be a more cost-effective way of proceeding if you can’t afford the whole thing. 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’re chosen for one of the unsigned showcases, it should guarantee that at least one A&R person will be at your gig. In past years, Suede, Oasis and The Darkness have all played ‘In the City Unsigned’ and more recent successes include The Automatic, Muse and Pulled Apart by Horses, who were asked by Muse to support them at a big gig at the Old Trafford Cricket Ground in September 2010. Other additions to the convention and unsigned gig scene include Liverpool Sound City and City Showcase.

Sheffield’s Leadmill venue has offered new bands a chance to play to its capacity audiences at its indie club nights with 30-minute opening slots available to unsigned acts. In the North East of England, a pub and venue chain called Head of Steam offered opportunities to winners of its unsigned competition run in conjunction with music development agency Generator. Amongst the prizes was a chance to perform at the 36,000-capacity Tyneside Evolution Festival in 2011. Online advice organisation CLIC offered winners of a Battle of the Bands competition in Wales the opportunity to perform on the pitch at Cardiff’s Millennium Stadium to an audience of up to 20,000 as part of a careers exhibition in 2010. So the opportunities for greater exposure are there – just make sure the organisation is legitimate. If possible, speak to last year’s winners about their experiences.

THE DEMO RECORDING

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 afford.

STUDIO DEALS

How do you afford to make a recording 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 are as likely to 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 demo CDs or MP3s in their car. 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. This is harder to do with an MP3 so 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 MySpace first began, it was such a novelty that it was an easy place to get yourself noticed and A&R people used it as a talent search resource. Now practically everyone on it has a track to sell and it has become a victim of its own success. Rising above the rest is now a serious challenge. For A&R people it has become a convenient place to hear your tracks and find out about you before deciding whether or not to attend your gig but no longer such an easy place to spot you in the first place. For both MySpace and Facebook, a video as opposed to still photographs is now becoming a ‘must-have’, no matter how rudimentary it is.

FINDER’S AGREEMENT

These kinds of deals go in and out of popularity. At the moment they seem to have 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 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, then that usually ends the ongoing relationship between you and the finder, unless, as sometimes happens, 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%. 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%.