[HelpfuLaw for the Indie Artist is a monthly advice column on legal matters pertaining to the music industry. If you have a suggestion for a future article that you would like to submit to our columnist, entertainment attorney and indie artist Christiane Cargill Kinney, please feel free to leave them in the comments section below or send them to her at Christiane.Kinney@leclairryan.com. You can also follow her on Twitter @musicalredhead for more helpful indie-artist tips.]
Q: We’re about to go into the studio to record, and I want to make sure we’re being smart and protecting ourselves here. What advice do you have for us before we record our new CD?
A: My biggest piece of general advice to all of you is to do something you are already doing: educating yourself. Protecting yourself and your musical creations before anyone pushes the “record” button is one of the most important things you can do for your music careers.
From a legal standpoint, there are six steps that I always share with clients – a checklist of sorts before they go into the recording studio – that I hope will be as helpful to you as being able to speak Klingon at the Comic-Con convention.
Step One: File your Form PA (for published or unpublished works of the performing arts) with the Copyright Office.
I’m often asked whether this step is even necessary, and if so, why? Here’s the deal: it’s true that copyright exists the moment something is created and fixed in a tangible form of expression. However, registering your work entitles you to certain important rights. It’s easy to do, and with the additional tip I’ll share here, it’s very inexpensive: if you know all of the songs you’re going to record in advance (which tends to be the more cost-effective approach to recording in my experience), you can submit a single Form PA for the entire collection of songs, and it will only cost you one filing fee (currently $35.00 for electronic filings).
So, what important rights do you get for registering your work? First, you have to register your works with the Copyright Office in order to gain access to the Federal courts to enforce a claim for copyright infringement. Second, if you register your works in advance, you may be eligible for “statutory damages” (you know the F.B.I. warnings that threaten big monetary damages before every movie?), as well as the recovery of attorneys’ fees. Third, if registration occurs within five years of publication of the work, your burden of proof at trial is made easier by the Courts.
At this point, you may think that none of that really matters. However, if someone used your material down the line and made a lot of money off of it without your permission or the proper licenses in place, you would probably feel as hopeless as a one-armed man in an applause contest. Think of it this way: registering your works is kind of like buying car insurance. You never need it until you do, and then, the more the better. You are also much more likely to find an attorney willing to take a case on contingency, or even pro bono, if they can seek to recover their attorneys’ fees from someone else at the end of the day.
Step Two: Talk to your songwriting partner(s) and/or bandmates and work out whatever you guys need to work out so everyone is on the same page going into the studio.
Does everyone get equal copyright ownership and control over the songs and the sound recording? Did one person write all of the songs, and if so, do any of the other band members expect any copyright ownership over the material? Are you going to treat copyright ownership of the sound recording differently from ownership of the songs themselves? Is one person going to be in charge of licensing decisions and be allowed to sign for the band, or does everyone get a say? Did your drummer really just implode and vanish into thin air?
I have a laundry list of questions that I ask my clients to discuss with their songwriting partners or bandmates before they head into the studio, so everyone is on the same page. These are questions that people hardly ever talk about before the money starts rolling in. However, they are all important things that every artist or band should consider when working as a collective (including the drummer’s history of imploding on stage). A written songwriting agreement or band partnership agreement can salvage friendships, and act as a roadmap for everyone. If you don’t have a roadmap, how do you know where you’re going?
Step Three: Figure out who is going to be involved in the recording process. If you don’t want to risk them possibly owning a part of the copyright in your song or sound recording, you should have a work for hire agreement in place with them.
Are you hiring a sound engineer or producer to work on the album? Is your sound engineer suddenly calling himself a producer, when you thought you were producing the album? Did you hire a string quartet, or other instruments not normally in your group, just to enhance the recording? Who is mastering the project?
Each of these people contributes some creative element, however large or small, to your music in the recording studio; and depending on the nature of that contribution, they could argue down the line that they are a joint owner of the work.
Although the general rule is that a person who creates a work is the author of that work, U.S. copyright law creates an exception for “works made for hire,” in which the employer or person commissioning certain works for use is considered the author of that work.
Sometimes things get a little sticky in the studio; egos take over. An instrumentalist creates a riff that becomes an integral part of the song; a sound engineer starts taking on more of a producer role; maybe your cowbell player thinks his stellar bell placement entitles him to 50% of the royalties. A work for hire agreement makes ownership of the copyright clear from the outset. If someone isn’t okay with it, at least you’ll know that up front, and you can make an empowered decision whether to use that person, or whether to go with another person who is willing to sign a work for hire agreement.
Keep in mind that consideration is required for a contract to be valid. This is a legal concept meaning something of value that is given in exchange for a performance or promise to perform. In some states, credit may suffice as adequate compensation. In other states, there may be a minimum amount of monetary compensation required.
Step Four: When the final recording is complete, it’s time to file a separate Form SR to protect your interests in the sound recording itself.
As I have said before, there is a separate copyright for the song and the recording of that song. Even though you filed your Form PA before recording, you will also want to file a separate Form SR to protect the sound recording of that song. This will become particularly important when a producer or music supervisor suddenly becomes interested in obtaining a master use and synchronization license from you for their new hit TV show.
Step Five: If you plan on filming any behind-the-scenes footage or videos, get permission first.
The recording process is a fun, creative environment, and with the advent of new technology, fans like to be a part of it. As artists, most of us can’t live 15 minutes without uploading photos and video footage to our social media channels to justify our existence by posting to the web; after all, we all know if you don’t post it to the web, it never really happened (kind of like the sound of that one-armed man clapping in the forest).
It’s great to utilize technology as a way to keep fans in the loop. However, in most states, did you know that you can be sued for using someone else’s name, voice, image, or likeness without their permission for an exploitative purpose?
If you are going to be filming any music videos or behind-the-scenes footage, or shooting photographs featuring people outside of your band, make sure to get permission first. Get a talent release from them before you start filming if possible. Otherwise, you may spend a ton of money in post blurring out faces, only to have your awesome new music video look like an episode of COPS.
Step Six: Get the proper licenses if you are recording any cover songs.
If you’re recording any cover songs, at a minimum, you’ll need a mechanical license. Be sure to read my previous DIY Musician blog, “Posting Cover Songs on YouTube: Music Licensing Explained” to get a better understanding of the licenses you’re going to need to record the cover song on a sound recording for commercial use, to print lyrics for the song, or to do a music video.
So, here’s a quick recap of the six steps I recommend you look at closely before going into the studio:
1. File your Form PA for the collection of songs that will be on your upcoming album;
2. Talk to your songwriting partners and/or bandmates to figure out what everyone’s expectations are with regard to copyright splits and ownership/control ahead of time. If possible, get a songwriting or band partnership agreement put together so it’s all clear and in writing;
3. Get your work for hire agreements in place for anyone who will be working on the album but who you don’t want to possibly end up owning a piece of your music (More cowbell please!);
4. File your Form SR when the recording is completed;
5. Get permission / talent releases in order if you are going to use someone else’s name, voice, image or likeness for an exploitative purpose; and
6. If you record any cover songs, get a mechanical license for the sound recording, and realize that you may need other licenses as well, for example, if you plan to print lyrics on the liner notes, shoot a music video, etc.
Now it’s time to put those 3D glasses on and read the fine print.
© 2012 Christiane Cargill Kinney. All rights reserved. This Blog contains information of a general nature that is not intended to be legal advice and should not be considered or relied on as legal advice. Any reader of this Blog who has legal matters involving information addressed in this Blog should consult with an experienced entertainment attorney. This Blog does not create an attorney-client relationship with any reader of this Blog. This Blog contains no warranties or representations that the information contained herein is true or accurate in all respects or that it is the most current or complete information on the subject matter covered. Are you still reading this? Pat yourself on the back, I’m impressed! Christiane Cargill Kinney is a Partner and Chair of the Entertainment Industry Team of LeClairRyan, LLP.
[Picture of band recording from Shutterstock].