First of all, please don’t sue us, Rolling Stones. It’s just a song title, and pop culture references are one of the few things that get us some satisfaction. Oh snap! See what I just did there? Seriously though, don’t sue us. We know some good lawyers. Wow, I’ve already gotten off track on my first blog entry.

The actual point of this post is to give those starting up a band some helpful ideas to make this business of music less painful. Yes, that is a music law nerd reference that I just made. And, yes, I’m kind of ashamed of it. Anyway, let’s just go with it and move on to those helpful tips:

• Band Agreements – Bands can be subject to different default rules, depending on the type of entity. And, even those unincorporated associations (i.e. group of guys/girls) = a de facto partnership (meaning you don’t have to do anything to be subject to partnership law, just be collaborating with at least one other person). Believe you me, this probably isn’t the law you want to rely on. Some food for thought about why a band agreement may be right for your band: How do you split royalties, credit, or control? What to do if members depart or are added on? Why figure this out now? It’s stellar that you’re getting along, and we want to keep it that way. The best time to contract is when everyone is on the same page, NOT when you’re fighting or on the verge of breaking up (or breaking out, for that matter). Bottom line: handle your rights before the law handles them for you in ways you may not want/anticipate. It’s hard enough to maintain these relationships over time, especially as money gets in the way. Anticipate problems and take care of them at the outset so that you can grow old and die together. I mean, grow old together and then die. Dying at the same time is not often planned.
• Copyrights – Here’s your mantra from now on: 1) original work of authorship, 2) fixed in a tangible medium. Laying down a track? Fixed. Mixing with Pro Tools? Fixed. Recorded at a concert and uploaded to YouTube? Fixed. Authorship is usually what you see people fighting over and, well, that’s a long discussion for another day. One good way to create a (rebuttable) presumption of proof that the music is yours is to have registered said copyrights. Check out www.copyright.gov for more info. On a final note here, know that the copyrights in the composition (the wordy, notey thing) and the sound recordings are two different things. They may have entirely separate authors, depending on the facts. Think a la Dolly Parton (songwriter) and Whitney Houston (who recorded a version of Dolly’s I Will Always Love You). Then, there’s co-authors. Does your moron friend want to go all Bad Boy Records and occasionally drop an interjection while you demonstrate actual musical talent? Do you want to share the rights to that song 50/50 if they are deemed a co-author? Get them to sign something, please.
• Band Names and Trademarks – Since time immemorial, it is likely that someone somewhere has used or is using your band name. The good/bad news is that trademarks live forever, and the flip side of that is that they eventually die after nonuse. In the United States, using a mark without registering at with the USPTO (United State Patent and Trademark Office) gives you common law rights where you engage in “a commercial use in commerce” – so, it’s location-based. Only played Boston clubs? That’s the scope of your use and, ignoring reasonable expansion zones, your protected geographic area. Playing shows in a foreign country? I’m sure you know that prior use rights don’t mean anything in some countries and that first to register always has superior rights. Selling stuff online? Well, that’s way more complicated and a good time to go to a lawyer and talk clearance and registration of your mark. Any trademark lawyer worth their salt can easily advise you on your trademark rights and the registration process. It’s an investment, but it normally gives you national exclusivity for your band name once it’s registered. And, the cost of these services often pales in comparison to the sweat equity you put into the band.
• Royalties – Performance Rights Organizations (PROs): ASCAP, BMI, or SESAC. Mechanicals: Harry Fox. Digital transmissions: SoundExchange. If you don’t know what these organizations do or you haven’t joined them, you’re leaving money on the table. The first three collect royalties for public performances of your songs and pay them to you. You only need to register with one and all three have certain genres and niches they serve best, so check out their rosters to decide the best one for you. HF does royalties for mechanical reproductions of your compositions, while the sound recording is covered by a separate master use right that has to be negotiated directly with the rightsholder (possibly your label, possibly your band as a whole if it’s unsigned). SEx does the performance thing for digital streaming, i.e. probably the only way people will hear music in the future whilst using their jetpacks. Confused about licensing and royalties yet? I haven’t even talked about sync licenses, non-interactive vs. interactive streaming, and ringtones. Keeping track of this is not easy, but that doesn’t mean it’s not worth doing. These organizations exist only to pay you! If you don’t want to deal with them directly, you can hire a company to take care of it FOR you! So, get down on it.
• Legal Entities – You know what you love about your bass player? That dude/dudette will do just about anything while you’re on tour, including fire-breathing some 151 that a fan threw on stage. Great for the band chemistry. Bad for risk management. Let me put on my Mr. Rogers cardigan and suggest that at least having the legal entity discussion is merited. The many-personality hydra that is your band is what gives it the uniqueness it has, but you may not want to go personally bankrupt if your concert goes unintentionally Dethklok. The limited liability offered by most legal entities is not a risk panacea. It won’t totally save you from your dumbass self (or your dumbass band mates if you’re the responsible one… which you probably are since you’re reading this), but it can help for the more mundane things (ex. fender benders) and the batshit crazy actions of your bandmates (ex. driving through mall when clearly asked not to).

These are just some of the points we can drop to help you get on your way. The list is unending and, in the current DIY environment, ever-changing. One thing still holds true: the best business model doesn’t work without some viable content behind it. So, go make music! And, if you have a question about legal implications of the music biz, hit us up.