Band Management, Partner Agreement, Contracts, Producing, etc.
In the member-managed band the band manager is a member of the band. The band manager books shows, collects and distributes money, arranges recording tours, and files taxes. Have only one member manager to avoid friction. Provide incentives like 5 to 10% of show income for booking gigs. Have regular meetings to discuss current band business. If member-managed isn’t working, hire a band manager who will take 15 – 20% of the band’s income.
Internal band issues are matters that are decided by and relate to individual band members ownership of songs, band name, and equipment. Essential tasks a band business must do are entering into contracts, managing taxes and finances, budgeting, and preserving copyrights.
Discussing issues with bandmates can cause friction. If your band is doing fine now why stir things up with legal and tax discussion. When income is increasing and your band is approaching viral, this is the time to make internal band decisions that need to be prepared for when deals arrive.
Your band is a business and all the members must agree how to operate. Start with the proposition that your band is a business and your fellow band members, as owners, must agree how to operate the business. decisions depend in part on the legal form your band is using. That is whether your band is a sole proprietorship, partnership, Corporation or an LLC.
You might think, well we’re just a band. Once you begin to earn money, enter into agreements, and interact with the public, the government sees you as an entity that is subject to business and tax laws. If you violate these laws you cannot claim ignorance as a defense. A business owner is expected to understand the rules.
Assuming your band hasn’t informed LLC or Corporation, most bands do not, then your band is probably operating as a partnership. The other possibility is that it’s a sole proprietorship – A band in which one person hires the other band members and tells them what to do. A partnership is a group of individuals who share the risks and profits in a venture. And who each own a percentage of the business. This is a category action in which the government imposes on your band. If there are no agreements, the government will step in with default rules on how you should operate.
Putting together a band partnership agreement
If your band wants to control what happens, rather than be subject to default legal rules, the partners need to create an agreement. A typical band partnership agreement serves as your bands rule book because it provides a method for resolving disputes, sets standards for firing and hiring band members, creates a system for dividing income and expenses, including future royalties, establishes guidelines for when the band breaks up, and establishes who may use the band’s name. Many bands get along fine without a written agreement until they have a separate band manager or a record deal then formalize a written partnership agreement.
Who owns your band’s name?
In a basic band partnership agreement, include the names and current number of partners and create a name for the agreement. Most bands use the band name and add the word partnership at the end like “The Smashing Pumpkins partnership.” Enter information about who owns the band name. The profits and losses clause states that all band members will share the profits equally, or write your own arrangement allowing the band member manager, or the band manager, to get a higher percent. The partnership agreement contains a leaving members clause that guarantees that the partnership will stay in effect if a member leaves. It also states that a band member may voluntarily leave the band and is entitled to a share of the partnership net worth as well as a share of royalties. If your band has thousands of dollars of equipment or record deals generating royalties you may need an accountant to determine the leaving member’s share.
Signing the agreement formalizes the band partnership. If a disgruntled ex band member wants to use the band’s name you can use the partnership agreement to enforce the band’s rights. If you decide to have a new band member they should also sign the partnership agreement. You don’t have to have every musician that plays in your band be a partner. The band can hire musicians as employees or contractors for various purposes. For example to play on a tour or a series of recording sessions. Many famous bands have sued their former bandmates to prevent the use of the band’s name. To avoid similar aggravation, decide ahead of time who owns the name. Decide which band members can use the name if members leave or the band breaks up. The best solution for a band with revolving members is to say that the band name is owned by the leading band member. Or another option is to claim that the band name is the exclusive property of the band as a group. Whatever is decided, if any member leaves they are not allowed to use the band name. Feel free to arrive at your own creative solution but if no solution is provided you will be subject to default legal rules.
Who owns your band’s songs?
U.S. copyright law awards to music related copyrights. The song writing copyright to the writers of the songs and the other is to the owners of the recordings, the sound recording copyright. Songwriting members of the band can earn a great deal more than other members. Writers of words, music and chords earn some revenue. Creative contributors also earn song revenue. There is no mandatory solution to divide up the revenue, it’s whatever creative solution the band members decide upon. After a song is recorded, the band should decide who gets credit for writing a song and each member’s percentage of income from the song. Non-writing members can still receive a percentage of income from the song If the band members agree on a percentage division. 1 credit for performing on a song, 2 credits for writing and performing on a song. This is a unique system and your band may have other ideas for creating other methods of dividing song income. Take a band’s song. How many people played on it? How many people wrote it? Add up these totals. For example if there are 4 players and 2 of them writers that’s 6. That becomes the denominator. The bottom number of a fraction. A band member who is a writer and performer of the song gets 2 credits for two sixths of the songs income. A band member who only performs gets one credit or one-sixth of the income. All of the song incomes is pooled regardless of its source and the money is divided according to these fractions.
Who owns the equipment?
The equipment that the band owns should be listed on a spreadsheet and documented with photographs. For tax and business reasons you need to retain receipts for the equipment as well as the proof of payment. You should also list the equipment’s fair market value – price that a buyer is likely to purchase it for. Under partnership rules, when a member leaves your band your band must reimburse that leaving member for a percentage of the value of the band assets which includes band owned equipment that is not obviously that band member’s stuff. For that reason you need to track how the band acquired the equipment, whether it is purchased by the band or donated by a member. Often when a band uses a members equipment it’s not clear whether the equipment has been donated or whether it still belongs to the band member.
Each band member is entitled to compensation for all equipment contributed to the band as well as the normal partnership percentage of assets at the time they leave the band. The costs of purchasing band equipment can be deducted from your band’s partnership income tax statement and all of the band Partners can claim a portion of the deduction on their individual returns.
Limiting the band’s liability
When you operate your band business as a partnership, a creditor can collect a partnership debt against any band member. The same is true for any lawsuit judgment against the band’s debts and obligations but not for non band personal debts. To minimize your band’s risk, form an LLC or Corporation. Unlike Partnerships, limited liability companies, LLCs, and corporations shield individual band members from business debts and lawsuits. Forming one of these liability limiting businesses usually requires the assistance of a lawyer or a business formation service. You can find one online. Expect to pay several hundred dollars to form one of these entities. Maybe more depending on your state law. There are also fees and legal work involved in dismantling these entities should the band break up.
Maintaining an LLC or Corporation may also be expensive. In California there is an annual LLC fee of $800. an LLC or Corporation may be a good choice if some band members have substantial assets and are concerned about becoming a liability target. An LLC or Corporation may be used solely for high-risk activities such as creating a separate touring business and use an LLC or Corporation for that purpose. There are different tax requirements for LLCs and corporations. Generally LLCs are probably easier to deal with when it comes to taxes than corporations with the exception of what are known as S corporations.
Another common way to limit liability is to purchase insurance. Liability insurance will pay for damage caused to other people or their property for which your band is legally responsible. You can also obtain property insurance to pay for lost or stolen equipment. Ask your insurance agent or search the web for entertainer’s insurance. Home insurance will not cover the band. Many homeowner’s policies specifically exclude business use. Consult an insurance agent and consider additional home business coverage. Auto insurance is also crucial. Your personal auto insurance policy may not cover use of your car for band business. So you may want to seek additional business coverage. You may get coverage simply by informing your insurance companies of your planned business use and paying a slightly higher premium.
Contracts
Some contracts, like management, recording, music publishing, and spec deals require special attention because you are committing your band for a period of years and/or transferring copyrights. If an agreement is transferring rights that will include wording such as “grant”, “assign”, “license” or “transfer.” In those cases your band would benefit from an attorney’s review. Get paper. The band manager is responsible for being the keeper of the “paper” referring to physical and digital copies. You need to archive all contract exchanges including supporting documentation such as emails, receipts, and proof of purchase. This is essential for tax purposes or if you’re ever involved in a contract dispute. Be aware of dispute resolution Provisions. Most contracts contain some statements regarding what happens in a dispute.
Your band should be on the lookout for 3 issues. Jurisdiction Provisions, sometimes called “Forum selection clauses” require the parties to consent in advance to resolving disputes in a specific location. Like if your record label is in Chicago and you have a legal dispute you must travel to Chicago even though your band is based in California. If you have bargaining power try to remove such requirements. Attorney fee Provisions require that one party in a lawsuit pay the other parties attorney fees. Most are mutual. Whoever loses the lawsuit pays. But watch out for one way Provisions that allowed only one of the parties to receive attorneys fees. One Way Provisions, no matter which side they favored, create an uneven playing field for resolving disputes. Some states, such as California, have recoganized this unfairness and automatically convert a one-way attorneys fees contract provision into a mutual provision.
Arbitration Provisions require that the parties resolve disputes through the aid of a private arbitration service. For simple contract disputes in which the matter can be heard in one day arbitration is usually a good choice because it is efficient. However, a binding arbitration ruling can’t be appealed and in some cases the costs of arbitration can be significant and may even exceed the costs of litigation.
Liability shifting provisions
Often a record contract will require that the band promise that it’s songs and recordings won’t infringe on anyone’s copyright or a performance agreement may require a promise that the band won’t cause injuries while performing. Sometimes these promises known as “warranties” are accompanied by an obligation known as “indemnity” that if infringement or injury occurs the band will pay all damages, including attorney fees. An attorneys assistance may be needed to properly draft and interpret these provisions.
Signatures
When signing an agreement on behalf of a band partnership, the name of the partnership must be mentioned above the signature line, or the partnership may not be bound, only the person signing the agreement will. Next to the printed name it should state, “General partner.” for example John Smith, General partner. if you are the member manager you should be authorized by the band to sign the contract. That is, the band has agreed to the terms and agreed that you can sign on the band’s behalf. Band members signing on behalf of Corporations and LLCs should be identified in their corporate or LLCs capacities. sometimes a music agreement will require all band members to sign it, and will state that the band members are jointly and severally liable. That means the other party can see the full amount of a debt, lawsuit, or injury from any or all of the band members.
Leaving member Provisions are typically found in management and recording contracts. If anyone leaves your band, the manager or record company has an option to sign that band member under the same terms and conditions as the underlying contract. If band members are uncomfortable with this provision, they should attempt to strike it completely, or have themselves excluded. No contract is bulletproof so it’s important to research the people with whom you contract. As some musicians say, “it’s the people not the paper.” So find out what you can about club owners, producers, musicians, or anyone else with whom you will be negotiating. Remember sometimes no deal is better than being trapped in a bad one.
Finances And Taxes
Hopefully, you already have a simple accounting system. Some method of keeping track of income and expenses. If not, it’s time to start. You can use paper, spreadsheets, or bookkeeping software applications to categorize and record income and expenses. Begin by breaking out income and expenses into discreet categories, for example, distinguish performance income, merchandise income, iTunes revenue, crowd funding payments, et cetera. Do the same for expenses, for example transportation, salary, studio rent, telephone, insurance, and hotels. The more specifically you can categorize and track these things, the better you’ll be able to make business predictions. For example, how many women’s t-shirts to order before the next tour. Any simple bookkeeping system will work as long as you can track cash flow, money coming in and going out.
It is also essential that you separately track when a member makes a financial contribution. For example, pays for gas on tour, as these contributions can affect the partner’s ownership interest. Any payments made to band members should also be recorded. And of course, be sure to track cash transactions. Remember, unreported income results in harsh penalties if the IRS finds out. You should also keep documentation. Maintaining receipts, invoices, or proof of payment. You can handle this the old fashioned way, toss them in a shoe box, or the more modern approach, scan it with an iPhone and download it. Either way, accurate documentation is essential. By the way, software applications have simplified bookkeeping. Consider programs such as Quicken, FreshBooks, or QuickBooks, or the online mint.com for bookkeeping. And look into tax tracking apps such as Expensify, MileIQ, and Evernote for maintaining digital documentation.
have separate accounts to keep band’s finances separate from personal finances. Ideally, in the form of a separate band checking account. That could simplify your accounting and tax management. To obtain a separate band business bank account, you’ll probably need a fictitious business name statement, FBN also known as a DBA statement. You’ll have to fill out a form furnished by the county clerk, pay a fee, and then arrange to have the contents of the form published in a local newspaper. The county clerk will be able to walk you through the procedure. You may also need a federal employer identification number, EIN, provided by the IRS. Setting up a band business bank account will simplify your bookkeeping life. But many bands find the bank fees and requirements burden some.
If you can not manage a separate band business checking account, consider a credit card dedicated solely to your band business. Bands that cannot qualify for a business credit card sometimes use a personal card, owned by one member. With one card dedicated to your band expenses, you’ll have less trouble downloading and calculating your annual expenses and interest. In addition, it’s a good idea to pay touring and equipment bills with credit cards, as your credit card contract typically provides a method for resolving disputes with merchants.
If you’re band is a partnership, here are some tax rules. Form 1065, though a partnership does not pay taxes, it must complete and file form 1065 US partnership return of income to report any income or losses. Whoever files form 1065, a partner or a tax preparer for example, must also give each band member partner a report called the schedule k one that contains all the relevant annual profit or loss information about the partnership. Each band partner declares a portion of the profit or loss on his or her schedule e which is submitted with that person’s individual 1040 form.
Partners must pay taxes on profits, even if the partnership leaves the profits in the business. If your partnership is able to retain profits each year, consider forming a corporation for the tax benefits. FEIN, in order to file a form 1065 and to open a band bank account, you will need a federal employer identification number. Refer to either as an EIN or FEIN, the business equivalent of a social security number. To obtain one, you can use the IRS’ online EIN assistant. You’ll be asked a series of questions. For example, what type of business you are claiming, list other musical services, or alternatively you can download and mail in a copy of form SS4.
Does your band have employees? If so, you’ll need to calculate and record payroll taxes and the resulting deductions. If you don’t want the hassle, consider an online payroll service, such as Paychex or QuickBooks payroll services. Deductions matter. Unfortunately many bands don’t bother deducting such things as professional dues, educational expenses, home studios, subscriptions, musical equipment and supplies, travel, meals, entertainment, lodging related to band work, union dues, and computers and software used for band purposes. Deductions are especially important because if your band is a loss, more deductions than income, each of the band members can deduct this loss against ordinary income. For example, against income from a day job; something that may lower your tax bill or result in a refund.
Touring Budgets
Deciding how and whether to tour comes down to budgeting. Preparing a budget consists of two columns: incoming, all income predicted for the tour, and outgoing, all expected touring expenses. Your goal is to prevent expenses from exceeding income, and to still have a reasonable touring experience. If your expenses exceeding your income, referred to as a tour shortfall, you need to cut costs or increase income. If you’re assigned to a record label or a music publisher, you may be able to get tour support, which is financial help from the company to supplement the shortfall. Any money you get will probably be deducted from future royalties.
Without tour support, you’ll need to cut expenses when you can. For example, all touring bands would benefit from having a road manager and tech roadie. A road manager, sometimes referred to as a tour manager, handles the day-to-day tour details, and sometimes drives the van. But tour manager salaries are often $1,000 or more per week, plus food and hotel rooms. And tech roadies or drivers may charge $500 or more per week. If you forego a tour manager and tech driver, your band could save thousands, but the tour may become more challenging as band members will have to take up the driving and tour details, sometimes resulting in sleep deprivation and frayed nerves.
More money can be saved if your band owns a van or truck, otherwise expect to pay $100 or more per day for a passenger van rental or a cargo van. You can determine gas expenses by calculating your total mileage, and dividing it by the van’s estimated miles per gallon. You’ll find that information at sites like: mpgbuddy.com. Rental vans have other costs as well, such as insurance and sales tax. Per diems, which means by the day, are payments to the band and crew for daily living expenses such as food. Expect to spend at least $35 to $100 a day for per diems for each person. Often, there is not enough tour income to pay band members a salary on the road. If your band plans to use hotels, motels, Airbnb, or BRBO, expect to pay anywhere from $100 to $200 a night for a double room or more, depending on accommodations. Crashing with friends or sleeping in the van is a major savings, but that, too has its downsides.
Other possible expenses include equipment rental costs, air fare and air freight costs, and booking agent commissions. You should also factor in a cost overrun, a percentage, usually five to ten percent of your expenses, to handle the unexpected. Dealing with tour shortfalls requires creative thinking. For example, some bands travel with a cooler and save the unused backstage refreshments for the next day. Hopefully, as your band’s booking value increases, you can abandon some of these austerity measures.
A booking agent arranges the tour and negotiates payments with the venues. In return, a booking agent usually receives 10% of your income from live performances, referred to as concert grosses. In some states, booking agents are regulated, and in California, they must be licensed. Normally a band signs an exclusive arrangement with a booking agent. That is, only that booking agent can book the band as long as that agent represents the band. It’s recommended that your band limit these arrangements to three years or less.
Protecting Copyrights
Once your band finishes an original song and records it, two copyrights are automatically created. A song copyright, initially owned by the songwriters, and a sound recording copyright that protects the performance of the song, and is initially owned by the band. Your band obtains the copyrights automatically. And although it is not mandatory, you can obtain additional benefits, and officially list your band as copyright owner by registering at the Copyright Office. If your band partnership owns the copyrights to all of the songs, and if the band partnership also owns the sound recording, there is a method to register both song copyrights and sound recording copyrights at one time.
Special instructions for this type of application are available in circulars 56 and 56a from the Copyright Office website. However, separate copyright applications must be used if individual songwriters, not the band, claim authorship and ownership of the songs. You can file using the Copyright Office’s electronic filing system, eCO, or by using the paper applications, form SR for sound recordings, form PA for songs. The fees are $55 for electronic filing, and $85 for print applications. Before filing, you should be certain about the copyright ownership, because the registration makes a public record of your claim, and you don’t want to declare someone as owner of your music if they are not. Registration is not mandatory. It primarily provides benefits if you are involved in a dispute. Therefore if your songs are not getting play on the internet or terrestrial radio stations, or not selling more than 1,000 copies, you may want to wait on registration.
Recording
There are two copyrights associated with music. A song copyright and a sound recording copyright. Here I’ll primarily discuss the sound recording copyright. Under copyright law, anyone who makes a material creative contribution to a recording is a co-author and co-owner of the resulting sound recording copyright. Your band owns the sound recording copyright unless you have transferred or assigned the rights, for example, to a record company. When others are involved in the recording process, your band’s copyright interest in the sound recording may be effected. Here are some tips to best protect your band’s rights.
Recording studios
A recording studio cannot claim an ownership in your music, simply because the recording was made there. There are two exceptions. A, studio employees arrange your music or perform on your recordings. Or b, the studio records your band on spec in return for a piece of the recording. If a studio employee makes a material contribution to your recording, you can guarantee your rights by asking the studio employee to sign a release, a simple statement in which the employee assigns all rights to your band. If a studio records your band on spec, the studio is speculating that your recording will be a success, in which case your band must repay the recording costs and more. Tread carefully. Check with an attorney if possible, as you may be giving up far more than the value of the recording services.
Producers
A producer, a professional who directs the recording and mixing sessions, is usually paid a fee and receives a percentage of the income from the recording. Producers work under three types of arrangements:
Record company/producer agreement.
In this arrangement, your record company hires and pays a producer and then later deducts that cost from the band’s royalties. The record company usually acquires all copyright from your band and the producer.
Band/producer agreement.
In this case, the band, not a record company, hires the producer, usually because it wants a suitable master to shop to a record company. The band usually retains all rights because this type of agreement typically includes an assignment from the producer to the band of all copyright.
Spec agreement.
In this situation, a production company or producer agrees to produce a band song or an album often on spec. That is, without an upfront payment. And in return, the production company usually helps to shop the final product and obtains various rights from the band. If possible, protect your band’s interest by having an attorney review a spec production agreement.
Your band may use other musicians on the recording. To avoid having a musician later claim an ownership interest in the performance, have the musician sign a release. You will need the signed release if you sell or license the recording to a major label, or to some independents.
If you are recording cover songs, you have an additional concern. Under copyright law, when you duplicate recordings, that is, make compact discs, vinyl records, or digital downloads, you’re making copies of the songs. Unless you have a license from the owners of the song and you pay what are referred to as mechanical royalties, your duplication is illegal. Many bands ignore this rule and fly low under the radar, undetected by song owners. That may work for some, but if the cover song achieves any level of popularity, the risk of being caught increases. By law, there is a simple legal procedure for obtaining a license for this purpose, called a compulsory license, that doesn’t involve direct contact with the song owner. You must pay a fee, a mechanical royalty rate of $.091 per duplicated song. For example, if you manufactured 1,000 compact discs, you would pay $91 per cover song. It’s easy to acquire this mechanical license online using the services of songfile.com.
Or if you wish to avoid the hefty fees charged by Songfile, you can do it yourself by sending a notice and payment directly to the music publisher whose address you may find at bmi.com or ascap.com. By the way, you cannot use a compulsory license if your band changed the basic melody or lyrics of the song.
Affiliating With Collection Organizations
The two music copyrights, song copyrights and recording copyrights, earn money in different ways. In the US, only songwriters, or song owners, not sound recording owners, earn income from over-the-air radio play when the recording is played by an AM or FM station or from concerts and related plays. However, both songwriters and sound recording owners are entitled to payments from play via digital transmission such as Pandora, Spotify, Live365 and Sirius XM radio. SoundExchange is the company designated to collect these payments and to pay the sound recording copyright owner, usually your band or record company. Before your band fills out the online SoundExchange paperwork you may want to find out whether SoundExchange has logged any action for your band’s recordings by checking their list of unregistered artists. If your band does not appear, there’s no immediate rush to register as no money is currently waiting for you. If your band’s name appears or if you just want to sign up complete the online application, you would sign up as a group and register as both a performer and copyright owner, assuming the band owns the copyright. You can sign up using the online application or by filling out a pdf. Either way, the registration is not automatic. It takes a few weeks to confirm acceptance in the SoundExchange program.
Affiliating with a performing rights society.
Performing rights societies, also known as a PRO or PRS, collect royalties from radio and television stations, nightclubs, websites, and other entities that play songs. Then, they pay this money to songwriters and music publishers. That is, this money is paid to those who have written or owned songs. As mentioned when discussing song ownership, your band needs to determine who wrote the songs and who will share in the income from the song copyright.
Some bands form music publishing companies for the purpose of distributing the income. If a songwriter doesn’t form a music publisher, the songwriter will receive a full share of the performing right society income. If the songwriter creates a music publisher, the publisher and songwriter divide the PRS income. Your band’s initial decision is whether you need a publisher. If not, the writers can simply register as songwriters at a PRS.
There are 3 performance rights organizations, BMI, ASCAP, and SESAC, although most bands affiliate with either BMI or ASCAP. A songwriter can affiliate with only one performing rights organization. It would be helpful if the songwriters in your band all affiliate with the same performing rights organization. Otherwise, it gets confusing if you later form a music publishing company. The registrations can be done online and the fees vary. You can join BMI as a songwriter for free. If your band joins BMI as a publisher, there is a one-time fee of $250. There is a one-time $50 fee to join ASCAP as either a songwriter or music publisher.
As you will see, forming a music publisher is fairly simple. It begins with a PRS affiliation. Start by furnishing the PRS with a name for your music publishing company. Since many names are already in use, you should search the BMI and ASCAP websites to find out if a name is already being used. If possible, try to use your band name or band partnership name as it may make it easier for you to cash checks.
After you’ve registered with BMI and ASCAP, you must submit clearance forms. This can be done online. If you don’t submit a clearance form for each song that is being released, you will not get paid. In addition to publisher’s clearance forms, songwriters complete separate writer’s clearance forms. The publisher’s clearance form asks for each writer’s share. That is something the songwriters in your band need to decide. The clearance form also asks for the names of all publishers and their shares. If your music publishing company is the only publisher of the song, indicate 100% for the publisher’s share. Six to eight weeks after submitting a clearance form, you should also review the BMI or ASCAP website to make sure that the song has been registered properly. If there is an error, contact the indexing department for that performing rights organization. If you were able to use your band partnership name for your music publisher, then you’ve completed the process and you’ve created a music publisher. If you had to use a different name, you may need to acquire a fictitious business name or federal employer identification number in order to cash checks.
Protecting Your Band Name
Your band name is protected under trademark law, an altogether different type of law from copyright laws that protect your songs and recordings. A trademark is a word, phrase, or symbol used in commerce to identify your band. In very broad terms, the first user of a band name can stop another band from using their trademark if it’s likely that fans would be confused. It doesn’t matter who was the first to dream up a band name, what matters is which band is the first to use it in commerce, that is on posters and newspaper advertisements, online or on recordings. As soon as you publicly use it, and assuming no one else has previously and continuously used it for music purposes, it is your trademark.
If a different band already has the same name that you want to use, don’t be tempted to get around trademark law by changing the name slightly. Names that sound alike or have the same meaning, even if they’re spelled differently, or are in a different language, are often likely to cause fan confusion. For example, the name Arcade Fear may likely be confused with Arcade Fire. There are various ways to check if a band name is already in use. For example, the website Is This Band Name Taken can alert you if a band name is already used or ill-advised. You can also determine whether anyone has registered the name for entertainment purposes at the US Patent and Trademark Office, USPTO website.
You don’t have to register your name with the federal government to get trademark protection, but it helps if you have a dispute. As a very general rule I recommend that you register your name if your band is signing a major label record deal, or if you’re earning over $10,000 a year. By the way, registration of a domain name is not the same thing as registering a trademark, and neither is registering a fictitious business name with the county clerk. If you register with the USPTO, you can claim trademark rights in all regions of the country, not just where you perform or sell records. And your band may use the symbol R in a circle in conjunction with your music.
If you want to register your band name, you can use the service of an attorney, or an online service such as trademarkia.com, or legalzoom.com to assist in the process. You can also do it yourself using the online assistance provided at the USPTO site. Fees for filing currently range from $225 to $325 per class. In the case of a performing band, you would choose Class 041, Entertainment Services. Once your application is received by the USPTO, it is assigned to a USPTO examining attorney, who will notify you if there is an error in the paperwork.
The total time for an application to be processed often takes a year. Two situations that may cause problems for your band’s registration of a trademark are if your band name consists of scandalous or immoral content, or if you use the name of a living person without permission. Although the Trademark Office rarely exercises its right to stop the use of a scandalous or immoral mark, it has done so on occasion. For example, recently refusing an Asian American band that sought to register “The Slants.” In other words, do not confuse your band’s right to freedom of speech with trademark registration. The Trademark Office will also not permit registration of a band name that consists of a living celebrity, such as “The Kim Kardashians,” without the consent of the celebrity. In addition, the use of a celebrity’s name could trigger a lawsuit based on a claim known as a right of publicity.
Artwork
As you’re probably aware, it’s illegal to use artwork without permission from the copyright owner. In reality, many bands get away with this activity because the copyright owners never learn about the use. But that approach will not always work, particularly if sales increase or if your band’s record is featured in the press, or is distributed by a pop record label. That’s why major labels and large independent labels insist on obtaining rights for all artwork on an album. Your band should obtain the rights for all artwork before having it published or posted. In that case, you use a simple written agreement where the photographer or artist either assigns all rights or gives you a license, preferably exclusive, so that your band can use the art on an album cover or website.
When artwork includes a person’s recognizable image, your band must also obtain a release from the model, that is the person in the artwork. That’s because under state laws, a person can prevent the use of his or her image when it is used for commercial purposes. This is known as the right of publicity. There are some exceptions. For example, you can usually use photos of people in large public gatherings, such as the crowd at an outdoor show. The easiest way to avoid problems with models is to obtain the permission of the model with a model release agreement, a simple statement in which the model consents to the use of his or her image in the artwork and related promotional material.
Hiring A Lawyer
At some point, your band may need an attorney’s advice, and the best way to locate one is through referrals from other bands, or musicians. It is also possible to locate, interview, and hire a music attorney through a lawyer referral service. For example, California Lawyers for the Arts runs a referral service that specializes in entertainment and patent attorneys. The Volunteer Lawyers for the Arts, VLA in New York City, vlany.org, also maintains a national directory of various organizations offering legal assistance for musicians. In addition, there are numerous online legal directories such as Avvo and Justia that offer online referrals.
Keep in mind that a referral service cannot guarantee the quality of the attorney’s services. Interview the attorney to determine if he or she has the experience necessary to handle your task. Find out information about fees, and if you decide to retain the attorney, make sure your fee agreement is with the band partnership, not an individual member. This reduces the chances of a conflict of interest, because the lawyer represents the interests of the group, not an individual. Be sure your band can afford the lawyer’s services. Ask how charges are calculated, and what the estimated cost for the job will be, and ask for an explanation if the bill exceeds the estimate.
Is a retainer required? Find out if you can use a credit card or pay over several months, and whether interest will be charged if your payments are late. Ask your attorney to work for fixed fees for certain work, rather than hourly billings. That is, see if you can get a flat rate for the whole job so you’ll know what to expect. Billings should be prompt and clear. Do not accept summary billings, for example, something vague like “litigation work.” When you get bills you don’t understand, ask the attorney for an explanation, and request that the attorney not bill you for the explanation.
Below are some additional tips for saving money with an attorney:
Elect one member to be the contact person with the attorney, to ask questions and relay information to the rest of the band. Lawyers charge for telephone time, so don’t duplicate your effort. The contact person should keep a list of questions for the lawyer. Ask them all in one telephone call, and take notes on the answers. Have a band meeting an hour before talking to the lawyer. Make a list of any questions or problems you need to cover during the meeting. Make sure everyone shows up on time so that you aren’t billed for time spent re-explaining things to the band member who arrives late.
If you need more information on managing your band’s business, check out the book, Music Law, or check out the blog, Dear Rich, in which he answers questions from artists and musicians.
