When music becomes more than just a pastime and you set out to write, play, and release music, it’s time to consider steps you should take to protect yourself.
Some time ago, someone emailed me to ask when they might need legal protection as an artist. More specifically, they wanted to know when would they need a contract to be legally protected and would they need a lawyer to review or draft such a contract?
As artists, many of us don’t think much about the legal aspects of the business. We just want to compose, record, and perform. But not being protected (or not securing the right licenses) can get very expensive very quickly and you could get sued into oblivion with penalties for willful copyright infringement reaching as high as $150,000 per song.
So today I’m going to cover some of the main areas where you, as an indie artist, will want or need to get protection, and — because lawyers are expensive — I’ll also offer my thoughts on whether you’ll need a lawyer to be protected.
Do you NEED legal protection? I would hazard a guess that most artists do NOT legally register their artist or band name. And as an indie artist struggling to get noticed, that may be fine. I was in several bands back in the day and we never registered our band name. However, not having your band name registered CAN lead to problems.
Remember last year when Lady Antebellum changed their name to Lady A and then promptly sued blues singer Lady A, who had been using that name for 20 years? My advice: if you’re serious about your band and its potential future, search the USPTO (United States Patent and Trademark Office) website to see if the name is already registered or whether there are cases where a trademark application is pending. If it’s clear, register your name at the USPTO.
Do you need a lawyer? No, you can do it yourself. An extra benefit is that a trademark on your band name can help you win any potential disputes over your domain name or social media names should a dispute ever arise.
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Copyright registration of your composition and sound recording
Do you NEED legal protection? Technically, no. Your work is protected as soon as you have recorded it in writing, as a video, or as an audio recording.
However, you’ll want to register your song with the US Copyright Office. Why? Some people just want to have the facts of their copyright on the public record and have a certificate of registration. More importantly, registered works may be eligible for statutory damages and attorney’s fees in successful litigation. In fact, the US Supreme Court has mandated copyright registration before any legal rights can be enforced.
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Recording a cover song
Do you NEED legal protection? You don’t need it to record a song written by someone else, but if you plan to release it — even if you distribute it without charging money (e.g. free download) — you need to secure a mechanical license so the composer or publisher of the song gets paid for your performance and to protect yourself from any lawsuits by the copyright owner of the composition.
Do you need a lawyer? No. A mechanical license is a compulsory license subject to a statutory rate. Applying online is simple and anyone can do it, including through Easy Song Licensing on the Disc Makers website.
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Band member agreement
Do you NEED legal protection? You’re better off if you have something in writing if the band thing is serious. What should be in there? Things like:
- Who owns the rights to the band name?
- Who owns which songs?
- If someone leaves the band, can the remaining members continue using the same band name and playing the same songs?
- How will band expenses be funded?
- Where does income go? (For example, does the band split income or put it towards a collective band fund?)
- Who makes the business decisions?
It’s best to discuss these matters with your bandmates, make sure you’re on the same page, and then document it.
Do you need a lawyer? Probably not, unless your band is already big-time. The Internet is such an amazing resource, just do a search for “band member contract template” and you’ll find lots of articles and examples.
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Do you NEED legal protection? I’d say yes. Producer agreements frequently involve them getting points, i.e. a piece of your royalties. Sometimes they have an agreement for you to sign, sometimes they won’t. There are lots of contract examples you can find online with a simple search. The punchline here is, since a producer deal can actually cost you royalty income, you’ll want to have everything spelled out in writing.
Do you need a lawyer? Probably, especially if the producer gives you his (or her) contract to review and sign. If you’re an up-and-coming artist and your producer is an up-and-coming producer, then you might be able to get away with a standard template you find online. However, I’m assuming you’re not a legal expert, so I would be very cautious about going it alone.
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Work for hire agreement
Do you NEED legal protection? Consider this scenario: You’re in the studio and you hired a saxophonist to lay down some bars on a song you’ve written. You release the song, it starts getting real traction, and now the saxophonist threatens to sue you for a part of the royalties as a co-writer. How do you avoid this? With a work for hire agreement that spells out that every artist who comes in to perform on your recording is paid their fee and does not own any further rights. So, yes, you need a contract.
Do you need a lawyer? Probably not if you’re an emerging independent artist. Just do some online research.
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Do you NEED legal protection? Absolutely. Labels sign artists all the time. They have experience doing this that you don’t. And while they want you to be successful, they are looking out for their own interests first.
Do you need a lawyer? Yes, you do. If you want a fair contract you need a lawyer, and more specifically, a lawyer with music industry experience representing artists.
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This covers all the main areas where you as an artist might need legal protection. Are there others? Sure there are. Why not add your thoughts and experiences in the comment section so others can benefit from your experience.
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Tony van Veen is the CEO of DIY Media Group, the parent company of Disc Makers and BookBaby. As a college student, he played in indie bands, created his own LPs, cassettes, and t-shirts, and sold them at shows. Today, he collects CDs, vinyl LPs, and concert t-shirts to support the artists he loves.
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Work For Hire agreements: The producer’s perspective