FAQ

Copyright is a property right. As the creator of a recording or a song, you will generally own the property rights of that recording or song ? i.e. the copyright. As the owner of that property, you will have certain exclusive rights to control how those recordings or songs are used by others.

As a recording artist and/or a writer, you will ordinarily be creating at least two distinct classes of copyright material:

Why do we need copyright?

The reason that copyright laws exist is to allow creators to be rewarded financially for the skill and effort which they have put into creating something.

Most of the time when someone wants to use a piece of copyright material they will need to get permission from the copyright owner. As with any other piece of property, a contract will generally need to be put in a place and a sum of money will be paid to the creator of the copyright work.

Without copyright protection, it would be easy for anyone to pass off a work as their own, or to exploit it without giving any credit or payment to the original creator.

Why is copyright important to me?

If you intend to have a career in the music industry, it is important to appreciate that the whole framework which allows artists to make a living through their music, is underpinned by copyright.

The more that you can get to grips with the basics of copyright, the easier you will find it to navigate some of the pitfalls of the music industry.

How do I copyright my demo?

In the UK, there is no formal requirement to register copyright. Your songs will be protected from the moment they are recorded in some tangible form (i.e. if you write out your song as a piece of sheet music, or more usually, as soon as you record your songs even if that recording is directly onto a computer).

When you hear about people posting their demo to themselves, or placing them with a trusted third party, this doesn?t as many people think ?copyright? the recordings. All it does is serves to confirm when and by whom a particular recording was created. This would certainly be helpful if there was ever a dispute as to whether or not you wrote a particular song before someone else, but you are not formally required to take such steps in order to protect your songs.

What is a record deal?

When you sign to a record company, they will own the rights in the recordings of your musical performances. In exchange for this they will manufacture and market your records and collect any income from those recordings.

A record deal will usually fall into one of two main categories:

Exclusive recording agreement ? the record company will be asking you to provide your exclusive recording services to them (and to no-one else) for a fixed period of time and they will want to own the rights in all recordings which you make both before and during that period. In this type of deal you would normally expect the label to arrange and pay for the recordings to be made.
Licence agreement ? in this situation you will have typically already paid for and recorded your tracks and will therefore own those recordings. You will therefore be granting the label the limited rights to certain recordings for a certain period of time, and maybe in only certain parts of the world.

How do I go about getting a record deal?

It sounds obvious, but first and foremost you will need to write some exceptional songs and ensure they are recorded in a way which presents them in the best possible light. Flashy websites or demo packaging, press packs, showcase gigs etc will all come in time, but in the early days, you should really try to focus on your material.

You need to be objective about the quality of your work, as it?s easy to fall into the trap of thinking your own music is a masterpiece, and your close friends and family are likely to tell you the same. Don?t ignore people who are honest enough to give you constructive criticism, in an industry where sincerity can be thin on the ground, these are the people you should be listening to.

Once you have some material together, you will need to start building a buzz around your music and generating the momentum which will hopefully lead to record company interest. In order to do this you should start assembling a team of people around you who can help push things forward.

An experienced music industry lawyer is a good starting point, as they will offer an independent and honest opinion on whether your music is up to scratch in the current market, as well as invaluable advice on all areas of the industry and the best path to securing a deal. If they are interested in working with you, they will be able to put you in touch with their contacts at management companies, booking agents, press, promoters, then when the time is right, start building some interest with record labels.

Feel free to send your myspace links Andrew Myers (amyers@clintons.co.uk) who represents The Kooks, James Morrison, Muse, Faithless, and The Cure amongst others

I've been offered a record deal by a small independent label, but at the top of the page it's called a "Production Deal". What does this mean?

In this kind of arrangement, it is not usually the label?s intention to distribute and release your records themselves. They will pay for you to record a number of tracks ? this can range from a few demos to an album?s worth of material, the idea being to develop your material to a high enough standard which they can then license on to a major record label. In return for this they will expect to receive a percentage of any income which is paid through from the major label (which, if you were to sign to that major label directly, would all be paid to you) for up to 5 albums.

The production company can justify this by arguing that they have taken a risk in investing in you at a point where no one else saw the potential. Very often a production deal can be a vital stepping stone to mainstream success, as the indie label which you are signing to may have a far better chance of getting your music noticed by a major than you would were you to go it alone.

Can we start our own record label and release our records ourselves?

There is absolutely nothing to stop you from doing this. But there are obviously legal and industry formalities to adhere to and the costs can soon mount up (including manufacturing, artwork and employing third parties such as a radio plugger or press agent). Therefore you need to consider carefully whether it is likely to lead to more success in the future (by generating some press and radio play for example) and whether you have a market out there to buy your records. Crucially you will need to get a distributor on board who can get your records into both the shops and for sale via the internet.

More information is available from the Association of Independent Music (AIM) http://www.musicindie.com/

What exactly is a publishing deal?

When you sign a publishing deal, the publisher is looking to buy the rights in your songs (which are generally made up of music and lyrics). In exchange, they will look to exploit these songs (by placing them with other performers as cover versions or to be featured in films, TV or adverts for example). The publisher will be responsible for collecting any income from this exploitation (which will include payments from your record company for the use of the songs on each record sold ? what are known as "mechanical royalties") and will pay through the majority (usually between 65% and 75%) to you.

It is useful to distinguish between some of the main types of publishing deals:

Exclusive publishing agreement ? the publisher will want you to provide your exclusive songwriting services to them (and to no-one else) for a certain period of time (usually linked to the release of your albums under a recording deal) and every song which you write prior to or during that period would be owned by the publisher.
Song assignment ? this means that they are only acquiring rights in and to a particular song or songs, rather than everything you write during a set period.
Administration agreement ? In this type of deal the publisher will just collect your income for you, but makes no claim to pro-actively promote your material. Accordingly, the percentage of income which they pay through to you can be as high as 90%. These types of deals are generally much shorter (between 1 and 3 years).

Again, as these agreements come in all shapes and sizes and as they fundamentally affect your rights in your songs, it is essential that you seek specialist legal advice before signing.

My manager wants me to sign a publishing deal with his company ? lots of people have told me this is a bad idea ? is it?

Unless there is a very good reason for doing so, this is usually inadvisable. The reason is (and this goes for signing a record deal or merchandising deal with your manager too) that it is a big part of your managers role to fight your corner and ensure that you aren?t being treated unfairly or getting a bad deal from your publisher. If they also work for or own the publishing company, then it is easy to see how a conflict of interest could occur.

More importantly, there is a risk of what you may hear referred to as "double dipping" i.e your publisher/manager takes their share of any publishing income under the publishing deal then takes another slice of whatever is left over under the management agreement.

That said, certain management do have very active and respected publishing companies and will not double dip. In these cases (and provided you don?t fall out with your manager), you will not pay management commission at all on your publishing income whilst you are being managed by that manager, which may work out to be a better deal.

Should I sign a publishing deal before I've signed a record deal?

All publishers know, that until your songs have been released on record, they are unlikely to make any money from your compositions. Until that point, there will be no radio play, no sale of records and no uses on film or TV.

Therefore, until that record deal is in place, the publisher is taking a big risk that you may not ever make any money for them. This means that the advances and royalties which they are prepared to offer pre-record deal, are likely to be lower than they would be if you were to wait until you have signed a record deal with a recognised record company or sold a large number of records. There are however a large number of independent publishing companies who do help develop acts ? by paying you a relatively small advance, this can give you the ability to record more tracks, tour for a period of time and generally get yourself to a level where a record label could be interested in you. They will also help increase your profile within the industry.

The risk is though, that if you wait and your album flops, you may have passed up your one chance at signing a potentially lucrative publishing deal. So while you shouldn?t rule it out completely, you will need to think very carefully about the pros and cons of any proposed publishing deal if you plan to sign before you have signed your record deal.

Our drummer's friend has been helping us out for a while now, and asked us to sign a short agreement with him, what should we do?

It is important to remember when you sign a management agreement, that you are appointing the manager to work for you (and not vice versa). Most managers will be keen to ensure that you are tied to them for a fixed period of time. So that if a more experienced or different manager should show some interest, you cannot simply walk away. Therefore it is always in the managers? best interests (but not necessarily in yours) to get you to sign an management agreement as soon as possible.

Who you choose to represent you at this stage will impact on all of the other important decisions which you make in your early career. Therefore, before even getting into serious talks about entering into a management agreement with someone, you should check their credentials carefully (by talking to other people in the music industry). A bad manager can seriously affect your credibility in the eyes of the wider music industry and can jeopardise all the hard work you have put in.

If the person seems right for the job, your next step should be to take independent legal advice on the terms of the deal.

What kind of standard terms should we expect to see in a management agreement?

Management agreements normally last between 3 and 5 years with a 20% commission payable. Most management agreements will also entitle the manager to continue taking commission on recordings and compositions which were recorded or written and first released while he was involved with working with you. ?Post-term? commission entitlement normally lasts between 8 and 15 years.

It is normal for an Artist to be allowed to get out of the deal early if the manager hasn?t secured you a record deal with an established label (or a label you are happy with) within say, the first 9 to 12 months of his appointment.

There are dozens of other provisions in any management agreement including those relating to how any income gets divided up and accounted to you, how the manager?s expenses are dealt with. All of these need to be checked over by any experienced music industry lawyer, who will also be able to pick up any important points which may not have been included in the draft agreement.

Our band needs a manager, how do we go about finding one?

As mentioned above, a good music lawyer may be able to put you in touch with some experienced managers who they have worked with before or who look after other artists represented by them. A word of warning though, good managers are few and far between and the best ones are incredibly busy, so the importance of having some great material and a real buzz around your live performances is crucial to gaining the interest of a good manager.

How do we get our tracks on iTunes?

Artists cannot usually put their tracks on iTunes for sale directly without the involvement of a record company. However, help is at hand in the form of so-called "aggregators". In return for a fee or a portion of the royalties paid out by on-line music services such as iTunes, aggregators will not only support unsigned artists sell their CDs on-line, but also get their music onto a wide range of on-line music services. [Examples of aggregators are: The Orchard (www.theorchard.com), Vital (www.vitaluk.com/digital/rsales.htm), CD Baby (www.cdbaby.net) and Consolidated Independent (www.ci-info.com). Their respective websites contain other useful information and tips].

Someone has posted one of our tracks on their website without our permission ? what can we do to stop this?

The posting of tracks on websites amounts to copyright infringement unless you or your record label has given permission. If the relevant website is a community website such as MySpace, then the initial step would be to contact the website provider to notify them of such infringement. Sites like MySpace take such unauthorised copyright usage extremely seriously and will use their internal controls and procedures to stop the infringement. In other cases, where you know who the infringing party is, you can write them a letter telling them that they are infringing your rights requiring them to immediately take down the tracks or else you will be forced to take legal advice. If the website ignores such letter or refuses to remove your tracks, you will need to instruct a lawyer specialising in intellectual property or the music industry to weigh up your options and possibly start legal action.

How do we register our bands name?

There is no need to register a band's name to start using it. However, as you become more and more successful, you may wish to register your name as a trade mark with the UK Patent Office (www.patent.gov.uk) for an annual fee (provided that the name is capable of being registered as explained in the Patent Office website). Band names do not have to be registered to be protected, but if there is any infringement it is usually easier and less painful for a band when the name has in fact been registered in this way.

If the band decide to set up a company for any reason (e.g. for tax reasons), then Companies House (which regulates how companies are formed and run) will require the company name (which may or may not be a derivative of the band?s name) to be registered on its public register (www.companieshouse.gov.uk).

You can now register your band's name on www.bandreg.com to alert others of the fact that you are using it. However, please note that the legal enforceability of this against a band copying the name is questionable ? it may merely serve as some form of evidence of when you started using that name.

I've found out about another band with the same name ? what should I do?

If another band has the same name, there is a risk that you may be breaching their trade mark. Even if they have not registered their name as a trade mark, they may have built up a sufficient reputationn that their name may not be used by another group, as this would lead to confusion. If this is the case, the other band will certainly get in touch to require you to stop using the name.

Alternatively, if your band name is a registered trade mark, or you have been using the name for a longer period and built up a good fanbase, it may be that the other band is infringing your rights, and you will be able to send them a letter asking them to immediately cease using the name.

It is advised that when coming up with a band name that you do some research into if any possible names you have chosen are already in use (www.bandreg.com and myspace are useful tools). If it is, then you should pick another name or add something to the name to differentiate between the bands (for example, in the US the act Air is called Air The French Band to differentiate them from another band).

Does my band need to have an agreement in place between the members?

In almost all cases, as soon as a band is formed a partnership exists in the eyes of the law. As a result there is no need to fill out any forms or sign any documents. However, the law that presides over partnerships which do not have a formal written agreement is very old and may not be relevant to your band. When a band can afford it, it is a good idea to get a written partnership agreement which will state exactly how the band will conduct itself including details of how profit will be split (for instance if one band member does more songwriting and playing than the others, the band may decide that he gets a greater cut of the profit), leaving members, name and equipment ownership, decision-making, etc. Some pretty famous bands have been involved in lengthy court battles about partnership matters. Many of the problems they faced could have been avoided had there been a well drafted agreement in place. The more detailed the agreement, the less chance of a costly and/or embarrassing fall-out when things start to go wrong.

Should we set our band up as limited company?

As explained above, a band is a partnership as soon as it is formed, and can commence business from then on. There is, therefore, no need at this stage to set up a limited company. The advantages of setting up a company are that the shareholders (i.e. the band members) will only have a limited liability, so if the company gets sued, it will generally be the company who has to pay out and not the members personally. Setting up a company can also be more tax efficient in some cases. However, major disadvantages are the need to comply with certain costly legal obligations such as preparing annual accounts and the lack of privacy (all companies must provide certain information that must be disclosed to the public ? see www.companieshouse.gov.uk for more detail). It is mostly for these reasons that it remains rare for bands to set up a limited company until much later in their careers. back to top

I've been working with a producer for a few months, should there be something in writing between us?

It is important to have something in writing as soon as possible. The law defines the copyright owner as "the person by whom the arrangements necessary for the making of the recording are undertaken". In the absence of any written agreement, the producer will have a clear interest in the copyright in recordings. As a result, it is important to have the producer sign a document in writing confirming that the rights in the track are owned by you in return for some sort of payment, usually through a share of the royalties earned from exploitation of the relevant tracks.

A producer has been working with me on some new recordings and do they have any rights in the song or the recordings he has made.

[SEE ABOVE]

I've had some friends play backing parts on my demos, but they're not part of the band as such, do they need to sign off on anything?

There are two issues to consider here ? copyright and Performers? Rights.

If your friends have just reproduced backing parts that you have written it is very unlikely that they will be entitled to a share of the copyright. If, however, they have written their own parts there is a possibility that they will own a share of the song. To avoid any uncertainty you and your friends should either sign a written agreement stating who owns what share of the song or you should ask your friends to confirm in writing that they are not entitled to a share of the copyright. The Musicians? Union website (www.musiciansunion.org.uk) has a number of contract templates that may be useful.

Performers? Rights entitle a performer on a track to withhold their consent to the recording of their performance being exploited. For this reason you should make sure that your friends sign a form agreeing to your use of their performance so that you are able to freely copy and distribute your demos.

What do these do?

Collecting Societies are bodies that collect and distribute royalties due to their members. There are a number of different collecting societies which administer and monitor different rights:

PRS (Performing Right Society) ? protects the rights and collects revenue on behalf of the songwriters and their publishers, where the songs are performed (e.g. on radio, TV and at gigs)..http://www.mcps-prs-alliance.co.uk

MCPS (Mechanical Copyright Protection Society) ? monitors and collects publishing royalties due to its members whenever a recording of one of their songs is reproduced (e.g. duplication of a CD). All record labels should have a valid licence from the MCPS. http://www.mcps-prs-alliance.co.uk

PPL (Phonographic Performance Limited) ? deals with the collection and payment of royalties when a recording (as opposed to a song, which is dealt with by the PRS) is played in public ? for example on the radio or in a bar. www.ppluk.com

VPL (Video Performance Limited) ? collects and distributes payments due to the owners of rights in music videos ? for example royalties arising when music videos are broadcast on music channels such as MTV or VH1. www.vpluk.com

MCPS-PRS, PPL, VPL, ASCAP - all these acronyms MMBH (make my brain hurt) is there something I can use to help me remember what they all do?

The PRS have produced a very useful diagram called ?The Music Universe? which shows how the music industry and collecting societies function and fit together. You can get hold of a copy by calling 0207 306 4300.

Why do I need a music lawyer?

Music lawyers can act as a middle man between you and (amongst others) record labels, publishers, managers and producers. As they are dealing in all sectors of the music industry on a daily basis, they can make sure your music gets heard by the right people and may be able to help you find a recording and/or publishing deal and (if necessary) a manager.

If you are offered a management / recording / publishing deal, you should always obtain legal advice before signing anything. A specialised music lawyer will protect your interests during any negotiations that take place and will be able to use the knowledge and expertise that they have gained from negotiating similar deals to ensure that any agreement that you sign is as favourable as possible.

Is it worth spending money on a specialist music lawyer?

In short, yes. Whilst the cost may sometimes seem high, the cost of not getting specialist legal advice can be much higher.