Fair Use Basics: Tunes and Lyrics

Performing a play written by someone else is not a 'Fair Use' of the script.

Students often get a bad impression from their teachers about what comprises 'Fair Use' under the copyright laws.  Students are taught that if they correctly quote something, and include appropriate attribution to the correct source or author, that the use is academically fair. It's only when students try to pass off something somebody else wrote as their own work that they get in trouble. 

The reason those students get in trouble is the issue of plagiarism. This is a matter of academic ethics -- but not a matter of copyright law. Out in the non-scholastic real world, it doesn't matter whether you include correct attributions or not -- if you include a part of someone else's song, lyrics, novel, poem, advertising copy, or other copyrighted creative work in one of your copyrighted creative works without their permission, you've violated that person's copyright.  Yes, even if you put their name on it. 

But since it's the law, there are some exceptions. Of course. Section 107 of the U.S. Copyright statute provides an exception to a creator’s exclusive copyrights for ‘fair use.’  The fair use provision states that use of a copyrighted work or image  “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

The statutory factors used to determine whether any particular use of a work is ‘fair use’ include: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work;(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and(4) the effect of the use upon the potential market for or value of the copyrighted work.”

If you are a songwriter, or a band, it is nearly certain that you are not a duly organized and IRS approved non-profit educational institution.  You write and perform music most likely with the full intention of making money at it. Some people are otherwise gainfully employed or retired and play mostly for free--but this doesn't make them a non-profit educational institution. If you are performing, recording, selling CDs, getting paid for gigs, or playing for free at places like farmers markets where your role is to help other people make money, your music is what the copyright statute means by, 'of a commercial nature.'

Therefore, if you are inserting pieces of other people's tunes, lyrics, novels, poems, movie lines, or anything else under copyright into your music, you will not be able to successfully claim that you were protected by the fair use doctrine. You will be guilty of copyright violations--and you just might get sued. Those re-makes of classic 80s tunes you hear cut into modern hiphop or pop commercial tunes today? Those songwriters purchased a license to do that--or, more likely, the copyright was already owned by the same music industry corporation that did the re-make. 

Find the copyright owner, and get permission. License before you splice. But you've got your own sound anyway--why do you need someone else's?

Non-Standard Venues

I get a chuckle out of those online calendar entries we have to do eight different times now, since all the various social media sites calendars don't talk to each other. And of course, they all ask for different information in a different order (quick, Joe, what's the zip code for that gig we're doing in October...) which bogs it down even further. But somewhere in the template for each one, you're usually asked to check a box indicating whether this is a 'Standard' or 'Non-Standard' Venue.

Standard venues are concert halls, bars and restaurants that have live music events often enough to make it into the calendar's data base. Be warned, if you click 'Standard Venue' and your venue isn't in the database, you'll be asked if you want to add it, and if you do that, you'll be spending the next half hour answering questions about the venue's capacity, street address and zip code, name of the manager, genres of music, whether it's over 21 only, and on and on. If you want to help out the venue--or help yourself out because you play there often so it'll be faster to list your gig next time, by all means go ahead.Otherwise, click on 'Non-Standard Venue' or whatever your particular calendar's equivalent nomenclature may be.

Non-Standard Venues are all the other millions of places in the world most of us play on a regular basis, especially bands that are just starting out or bands that play things other than rock covers. Uncle Mike's barbecue, farmers markets, art exhibits, elementary school arts programs, summer camps, conference dinners, weddings, and the Burlington Vermont City Marathon, where our friends Longford Row just played yesterday and got fantastic t.v. news coverage in the process, are all 'Non-Standard Venues,' in online calendar parlance.

Don't let the arbitrary name fool you--non-standard venues can often wind up being as lucrative and worthwhile as standard venues, if not moreso. People at bars and restaurants are often spending their money on, well, drink and food, not CDs. Folks at a farmers market, coffeeshop or street fair are there to spend money but haven't made up their minds on what yet, and more importantly, they are happy to stop, linger, chat, pick up your business card, remember your name and look at your website or Facebook page later. Unless you're headlining at a music hall in a community renowned for its support of musicians, that community arts walk gig might just be the best one you've played all week.

What's the most surprisingly successful non-standard venue you've ever played at?

Tribes: Build Your Band Clan

A book review in a band blog? I promise this one won't bog you down. It's cheap, short, and it helped jell a lot of things that had been rumbling around in my brain about marketing a band. Author Seth Godin has published one hell of a lot of quick management and leadership books. This one puts leadership in the context of the new marketing environment that exists in the world of global instantaneous communications. Long and short of it: You need to build a tribe by defining commonalities of interest and then creating a forum for folks who share those commonalities to communicate with one another. It's an outgrowth of branding--or takes branding to a new level, one that focuses on the people who define themselves as those who share and partake in your product -- i.e., your fans -- just as strongly as it focuses on the product itself -- i.e., your music, CDs, videos etc.

Pick it up, read it on the beach, see if it resonates with you. Rock on, and lead your people!

Niche Marketing: Define Yourself

Jazz pianist.
Irish pub band.
Gypsy dance music.
Cajun. Zydeco.
Bagpipes--like the Catamount Pipe Band in the photo.
Cowboy ballad singer.
Love-song duets.
Classic rock covers.

Is marketing your music in a niche liberating and lucrative, or does it restrict your gig and development options? I tend to think that clearly defining your sound and consistently marketing to venues and audiences that connect with that sound is a more successful strategy than trying to be all musical things to all people, no matter how talented and diverse your musical skills may be.

My band partner and I both have long experience in rock bands, though mine were more garage party bands and he ran a serious bar band circuit in Connecticut some years ago. I came through a school district with a huge music program and have lifelong classical orchestral and concert piano training, as well as jazz band. I continue to love jazz and blues, and write copious quantities of jazz and country blues ballads.

We occasionally slink in a bluesy piece to close out the night, or if we see that there are people up slow dancing we might segue a few of those into the set spontaneously. But otherwise, we stick with being an Irish music band. 

We've even taken this one step further in defining who we are to distinguish ourselves from the slate of other Irish bar bands out there. We refer to our sound as The Music of Irish America, with an emphasis on the immigration experience. We also market specific historic music programs, playing authentic 19th century music at Civil War encampments and re-enactment events, and music of the early 20th century immigration era at history fairs and Irish cultural organizations. We have another specialty program of music based on Irish poetry and literature, which we perform at bookstores and writer's conferences.

Granted, these programs won't get us booked at the House of Blues, but there are thousands of bands who fit the House of Blues' performance niches--and most of them can't play where we do. Remember September rocks the legendary Toad's Place in New Haven, Connecticut, a venue which probably would not ever call us up, but, awesome as they are, they probably wouldn't work in the coffeehouse circuit that we play. An upscale resort or martini bar won't likely hire us unless there's an Irish-themed event, but they might well hire our friend Gena McGuire which is fine for us, and she probably doesn't get a lot of calls to play Half-St.-Pat's parties, either.  We all give up some options but gain others.

No matter your musical genre, it is important to both INCLUDE yourself in a clearly-defined category of music that potentially listeners and venues will understand and relate to -- rock, Celtic, klezmer, whatever--as well as to then DIFFERENTIATE yourself within that category to demonstrate which points you excel at, which is why folks should listen to you. If you are a Southern rock band, you don't want to waste your time marketing to folks who listen to nothing but opera, but you also want to tell Southern rock fans --and perhaps fringe cross-over folks like fans of classic rock, rockabilly and heavy country--why they should sit up and take notice of you.

Tell them who you are--and play your heart out.

When to Sue

You show up at a gig you booked 5 months before. You've spent about ten hours of time promoting this gig, posting it to all your social media pages, designing and printing out a  poster and mailing it to the venue and having your street team plaster paper around town, creating a Facebook event and inviting everyone on the planet whose name and page you could creep up. You practiced, you wrote up your setlist, you packed the truck, you drove over an hour to get there. 

But when you arrive you notice your posters aren't up. The hostess winkles her nose in confusion and says, No, we're not having a band tonight...  Finally the manager comes out and says, Oh, I thought I emailed you. We've got a private party here tonight, guys, sorry. Shoot me an email, we'll do it some other time. 

Or, in a move similar to what just happened to me, you show up and find out the venue went out of business the night before--after having booked you to play a once a month slot for a year.

Fact is, you could legally sue these venues, and in a perfect world, that would probably be the appropriate way to ensure a just solution. Assuming the dollar amounts involved were under several thousands of dollars, depending on your jurisdiction, you could even sue in small claims court, which is inexpensive and easy to do without a lawyer. 

You could probably sue, successfully, on two legal theories that go hand-in-hand. One is that you had a contract with the venue, that is, a meeting of the minds and agreement that you would play on a certain date for X amount of time, and the venue would provide... whatever the venue was going to provide. Space to play, listing in the paper, a paycheck, a tip jar, a free dish of ice cream. As long as whatever the venue was going to provide had value--even an uncertain value, like a tip jar--then this was an agreement to perform a service for a certain value, which means it was a contract. 

The other similar theory is that you reasonably acted in reliance on the venue's representations. You expended time and money, and declared yourself unavailable for other potentially lucrative engagements, because the venue promised you could play there that night. 

Either way, you've been wronged and it cost you time, money and opportunity, and it is legally appropriate for the venue, as the wrongdoer, to have to compensate you for that. 

So what's the downside? In the case of the venue that remains open, the downside is you'll never play there again if you sue them. But that might not be a bad thing. In the case of the closed venue, well, you weren't going to be playing there anyway. But in a community where restaurant and club owners know each other, socialize together, or where chains of bars are owned by the same management company, you may also find yourself locked out of a larger number of potential venues--blacklisted by the management. 

Ethically, this is just plain wrong. You got screwed over and, as a business, should be able, in a business-like manner, to place an honest claim for your compensation before the courts. And you might just want to do that. Just be aware that it runs a risk of retaliation or being shut out of other things, and that might make the tough life of booking gigs even tougher. You'll have to weigh the pros and cons and make that decision for yourself.  Talk to other bands, for starters -- if this venue has a bad rep for continually screwing bands over, you may just want to go ahead and file for compensation under the theory that someone needs to make them realize they can't keep getting away with it.

Rock on your rights--you don't necessarily have to let them walk all over you.

Visual Communications: Your Band Image

What's the first thing that springs to mind when you think of Kiss? Elvis Presley? Madonna? Boston Symphony Orchestra?

What your brain probably saw first, before it located an associated audio file on your neural CD shelf, was face makeup, a white sequined suit and sideburns, a pointy-cupped bustier, and black and white tuxedos. For my all-time favorite band in the world, Vermont's own bagpipe rock band Prydein, it's kilts with hiking boots and polo shirts -- and if that doesn't scream 'Vermont bagpipe rock band' then I don't know what would.

Point being, as I tell my public speaking and communication ethics students on day one of their classes, a huge portion of human communication is visual. That's the irony of our rapidly developing communication technology lines like email, texting and Twitter--it eliminates the visual component of the communication, vastly increasing the potential for misunderstanding and conflict. Only the advent of emoticons let you know that when I call you such a jerk :) that I'm just teasing you and won't really flatten your tires while you're at work so you miss your date with that other girl.

Most up and coming garage bands and gigging party-rock bands have a guitar player or two, a bass player, drummer, maybe a separate vocalist, and they all wear blue jeans and various t-shirts, often with dumb or cutesy logos on them. While this channels The Doors visual mojo, remember that the Doors weren't doing the same cover sets as everyone else, they were doing mind-shatteringly new original material and had Jim Morrison's voice and poetic vision. If you've got that level of creativity, originality and drive, so that your audience--including industry spotters--can't possibly confuse you with anyone else six months later when they are trying to remember which band in the night's showcase did that really pretty rendition of Georgia On My Mind, then by all means stick with the jeans and nondescript t-shirts.

If you want an instant mental association with you and your music, however, think about what you look like and choose something unique and consistent to create an outstanding, memorable visual image.  My current band, O'hAnleigh, plays in a niche genre of Irish-American music, with an emphasis on historical music of the Civil War and Immigration eras. We lean towards costuming with a variety of props that scream Irish and Folk -- lots of green, capes, caps, suspenders. For our first CD cover we shot on a windswept hill overlooking nearby Lake Champlain--and people always ask us where in Ireland the picture was taken. On our second CD cover we wore 19th century attire and shot on a set of railroad tracks. We usually wear quite similar clothes to perform.

It can feel silly to costume up to play a gig, but it is critically important. Our CD covers and the clothes we wear to gigs instantly convey to our audiences who we are and where we are from and what we stand for. A bunch of folks in jeans and tshirts against the ubiquitous brick wall favored by so many young rock bands conveys nothing to the observer about what they can expect to hear when they listen to the tracks. It does not convey visually what you stand for, where the heart of your music comes from.

You don't have to adopt a band uniform of powder blue tuxedos with ruffly shirts--though dang, that really would be memorable if you're ballsy enough to pull it off! But anything that creates an integrated image and conveys some of your substance through that image will set you far apart from the usual cover-band pack. When the eyes and brain are attracted by your unique visual image, your music will receive more attention and be remembered longer than if the eyes and brain glossed over you, already relegating you to the same old-same old pile before you even started playing. It can be simple--try blue button down dress shirts just for grins and jollies--and need not be expensive. But if you're ignoring your visual image, you're ignoring the vast majority of your potential to communicate.

Rock out, and look good.

Copyright -- Lessons from The Lion King

The tale has become legend in the music industry, particularly in the folk music community. In 1939, Solomon Linda recorded an improvisational song called Mbube at Gallo Records in South Africa. The song followed patterns of traditional folk music in the region, but was an original work, with Linda's choir The Evening Birds providing a deep compelling chant of low harmonies under Linda's high melodic tones.

The copyright for the song was transferred to Gallo Records, and the piece went on to be recorded by the Weavers, Pete Seeger, The Tokens and many others, evolving as it went, with changes in lyrics to make it more pronounceable by western performers, more understandable to western audiences, and more comfortable to listen to in western musical genre patterns. Along the way, many of these performers recorded their own copyrights of their versions and arrangements of the song.

Fast forward, and of course the song is now The Lion Sleep Tonight, the theme song of Disney's Lion King, playing on Broadway, in movie theaters and home DVDs all over the world, as well as in chips in kid's lunchboxes, toothbrushes, stuffed animals and greeting cards. This 1939 original folk music recording is now worth millions, if not billions, of dollars. It is the auditory trademark to Disney's Lion King empire.

Solomon Linda died in 1962, leaving not enough money for a gravestone. He had lived on virtually nothing, with two of his children dying in infancy due to lack of food and other deprivations of poverty, according to a New York Times interview with his daughter Elisabeth Nsele. Solomon's other daughter, Adelaide, also died of AIDS, unable to afford life preserving medical treatment.

Solomon Linda had been paid, 87 cents, by Gallo Records when he originally recorded Mbube. Years later, he did receive occasional payments from The Richmond Organization, the publishing house which published the Weaver's version of Wimoweh, as the song was called while it was being recorded by various U.S. folk artists. Disney did obtain a license from Abilene Music for the song The Lion Sleeps Tonight, but how the rights passed, if indeed they did, from Solomon Linda to Gallo to The Richmond Organization to Abilene is a bit obscure.

Eventually, Solomon Linda's remaining heirs sued Disney, claiming that under the law in effect at the time, the copyright Solomon Linda had signed over to Gallo Records reverted to him and his heirs after 25 years. The Linda heirs, Disney, and the various publishing houses claiming rights entered into settlement for an undisclosed sum. It is a somewhat happy ending, though it took a painful and difficult path to arrive at it.

Lessons learned:

--When you write a song, you have no idea where it is going. If your song is genuine, heartfelt, original, and in your own unique voice, expressing a culture and emotions and a vision that only you can create, it may well take on a life of its own and become larger than you could possibly imagine. Treat each song as an infant that might well grow up to be the most well-known and recognizable song in the world.

--Your song may well succeed long after your death. Ensure that your copyrights, publishing contracts, and your estate plan take into account any successful revenue and song placement after your death.  Don't forget to specifically devise your copyrights to your heirs, or they may get lost in or attributed to the residue of your estate rather than left to your children or other intended heirs.

--Don't sell the copyright to your song for 87 cents, even if you are starving. This is a tough one. When you need the cash, and cash is offered, it seems well worth it. Just be aware before you take the offered paltry sum for a composition or recording that you may well have to just walk away in the future while your song rakes in millions for someone else. It's a risk, a gamble, and only you can make that decision--but make it with your eyes wide open.

--Track and enforce your copyrights continuously. More on this in the next post....   in the meantime, Rock, Record, and Register your copyrights promptly.

Band Budget--Who Owns, and Pays for, What?

Start-up bands--and, let's be honest, those that have been in business for many years, too--are often short of dough. When you start out, you either get mom to loan you her credit card, or you roll pennies for enough money to put gas in the tank to get the van with the gear to the gig. We've all been there.

Most band members will own their own instruments coming into the band, and in a basic rock band, most will likely own their own amps, too. When it gets into mics and mic stands, cables, a PA (or two or three), speakers, monitors, light arrays, and a bigger van to haul it all in, the question of who pays for and owns what can get dicey. Or the logistics might roll along smoothly while everyone is getting along--until there's an issue, and then it becomes, well, and issue.

Conversation and clarity before it all becomes an issue is critical. If your band has chosen to form as a legal entity like an LLC, you might open a band bank account, get a band credit card, appoint someone as the band bookkeeper, and buy equipment that is owned by this separate legal creature that is the band. You might agree to pay off all bills from gig revenue before paying any band members.

A helpful strategy is to put a certain, set percentage of revenue into the band fund before paying anyone out. This is the savings account for your band, that you can draw from to make an equipment purchase or pay for transportation and hotels to an unpaid distant gig that everyone agrees is good exposure and promotion for the band.

What is critically important, however, is to decide how spending decisions will be made, and who is authorized to write checks or use the band credit card. Another critical point of discussion is who owns what. If the band decides to use band funds to buy Freddie a new guitar because her pickups on the old one are totally shot to hell--does the guitar belong to the band, or to Freddie? This will depend in part on the operating or partnership agreement if you have a formal entity--and if you don't have a formal entity, it's something you better be real clear about it before Freddie says thanks guys, and by the way, I'm moving across the country, this guitar will be a sweet reminder of our time together.

Disagreements over money end more marriages, friendships and bands than anyone can count. People have a lot of emotional baggage tied up with money; money is how we keep score and measure our self-worth. A perception that other people are making money decisions and excluding you, or a perception that one person gets to make all the artistic decisions because he is also bankrolling the equipment purchases, can dampen or destroy the bonds that bring a band alive. Frank, businesslike conversations about who owns and pays for what--with the fruits of those conversations written down in a band record notebook so that everyone remembers what the conversation was six months later--may seem incredibly unsexy and boring, but it will keep relationships clear and clean, freeing you up to sink your emotional energy into playing your heart out.

Copyright--What it Is

 

Copyright is the intangible, intellectual property right that you have in your original creative works, provided those works have been fixed in a tangible medium. In the United States, copyright is a Constitutionally protected right, but its exact parameters are set by statute and case law, as well as by international copyright treaties and agreements. 

Wow, that's a lot of big lawyer words. Let's parse through them a bit. 

Copyright is an intangible right. Although you can see or hear or feel your painting, sculpture, novel, play or song, and can thus have a tangible property right in that object, copyright is more of an idea than a thing. It's a right to do certain things with your original creative intellectual property, such as write a sequel or prequel, make posters or coffee mugs out of the image of your painting, and to duplicate and sell your own work. 

Copyright protects creative intellectual property. Your house is a type of legal entity called real property; your kitchen table is a type of legal entity called personal property.  Real property and personal property have economic worth based on fair market value--what the item sells for.  Intellectual property--ideas, designs, plans--also have economic worth, but are a bit more difficult logistically to insure and protect from theft. Copyright laws are intended to protect the economic value of creative original ideas, so that creative people can be able to make a living and generate more creative ideas to better all of society. Other intellectual property laws, like trademark and patent law, are also intended to protect the economic value of original creative thoughts.

Copyright laws do not attach to an idea, however, until it is 'fixed in a tangible medium,' which means written down or recorded somewhere. The song in your head, even if you walk around humming it, is not yet protected by copyright law. Hum it into your hand-held digital recorder, however, and copyright protections attach. The danger is, if you walk around singing it before recording it or writing it down, and someone else picks it up and hums it into their recorder, you will not hold the copyright on it. 

Copyright belongs to the 'author' of a work, but copyright can be shared on collaborative projects. For example, in The Mermaid's Tale video above, my band partner Tom Hanley and I share the copyright on the music and lyrics of the song about the mermaid who lures sailors to their doom, but the extremely talented Emilie Rodgers, www.emilierodgers.com, created the animated interpretation of the song and owns the copyright in the animated video.  In this case, Emilie and I exchanged a license--permission to use each other's copyrighted works--so that we could show the video with our song, and she can show people the video with our song in it. 

Copyright attaches to a creative work, like a song, as soon as you fix it in a tangible medium--but enforcement of your copyrights may be difficult if you have not registered your song with the U.S. Copyright Office. Registration is easy and inexpensive--and is even easier and less expensive if you register a batch of songs together as a collection. More on registration in the next post, but in the meantime, bookmark the U.S.Copyright Office webpage,  http://www.copyright.gov/, and make it your friend. It's a surprisingly user-friendly, with plain English FAQs and simple online forms. 

So rock on--but write it down, and then register it!

Professionalism: Perform Now, Party Later

Musicians rightfully focus most of their energy on making great music. While this is the core of the game, it's not the whole game. A quarterback who can run like the wind and throw with the accuracy of a Raytheon missile will still not get a college scholarship or signed to the pros if he shows up late and drunk for practice and stands around on the field talking on his cell phone. The same goes for the band.  Let your venues, agents, manager and fans know you are serious by presenting yourself in a professional and businesslike manner. Save the debauchery until the show is done, the check is in hand, and the instruments and gear is back safely in the van/bus/limo.

--Double check the date and time of your gig. Triple check it. Check it in the paper and online calendar listings as well. I can't count the number of times we were told we were starting at 8, we checked and were told again we were starting at 8, we put 8 on our posters, then got to the gig at 7 to set up and discovered a mess of folks waiting around for us to start because the paper had it listed at 7.

--Clarify the financial and logistical terms of the gig in a businesslike, professional conversation in which you stress that you want to confirm the terms and make sure it works for both you and the venue.  Include clarification of details including which door you should load in through, what time you can load in, and whether you get dinner and drinks gratis or have to pay for them. If there's a green room, ask what that will entail.

--Arrive on time. This does not mean, arrive at the moment you are scheduled to start playing. It means arriving far enough ahead of time to set up, including any contingencies that may arise in weird situations loading in (one of our annual gigs involves loading in up three flights of fire escape stairs), a lack of nearby electrical outlets, or tripping over the gear of the last three bands that played and left their equipment sitting there while they went to the bar.

--In a package show or showcase night, demonstrate professional courtesy to the bands playing before you and after you. Try to touch base with them before the gig night, or at the least before their set. Formulate a quick plan for swapping out drum kits and other gear so you can get on the stage swiftly.

--When your set is done, get off the stage. I'll confess this is a real pet peeve of mine. I realize when you play, you put lots of energy in it, and when you're done you are often overwhelmed with adrenaline, exhilaration, and exhaustion. All that is fantastic, and one of the great rewards of a gig well played. However, if there are people waiting to play after you, grab your stuff and sling it offstage BEFORE you start hugging each other, your mom, and your fans and telling yourselves how fantastic you were. The next band's moms and friends have also been patiently waiting all through your set to see them, so do your part to make it happen. Play your heart out--then make way for others to do the same.

--Say thank you.  To the venue, to the band ahead of you who moved out of your way fast, to the guys who loaned you a cable, to the person who gave you the name of the person to call to book the gig. Shoot them an email or a handwritten note after the show. Better yet, send flowers.   Onstage, thank the venue, any organizers and sponsors, and ask the audience to give it up for the bands that played before you, and remember to tell them to stick around for the bands after you. If you're alone in the line-up, shout out the venue's line up for the next week or the next concert in the series. Always, always shout out the bartender and the bouncers, as they can be your best friend in this industry.

--Establish professional contacts with other bands in your genre. Don't think of them as the competition, think of them as allies. All of us in independent music are fighting to redefine the economic and legal environment we are working in, all while scrambling to try to keep live music venues open and encourage more people to ditch their televisions for the night and come out and listen. It's great to have other bands in your genre you can call on if some last minute emergency comes up and you can't make a gig, or to be able to send a venue to a colleague if you have a conflict on the date they want you to play.  And it's also great to know musicians in other genres for those gigs it's not appropriate for you to do. If we get booked for a wedding and they want something mellower for the dinner hour, I'll suggest they call piano-vocalist Gena McGuire. If someone asks your band if you can play Irish music for St. Pat's weekend, you can either send them my way or shoot me an email for some song cheat sheets that you can throw together fast.

We're all in it together, so if we act professionally we can encourage more venues to open up more time for all of us.

Gig Contracts and Clarity

The terms of an agreement to perform often can be described as vague at best. Let's say you are going to play a 300 seat concert hall. The date and time have been established in a series of short emails. You ask for some more details on the logistics. A short answer comes back saying, "We have the lights and sound. You can take 60% of the house. Ticket price $15." 
Performance night rolls around and all 300 seats are filled. You're thinking 300X$15=$4500 is the house, and your cut will be 60% of that, or $2700. Sweet.

Except as you're packing up, the house manager tells you what a fabulous job you did, how everyone loved it, how they'd love to have you back next years, and hands you a check for $200. You wrinkle your brow in confusion and say, "Is that it? I though we had 60% of the house." "Of course," the manager answers with a smile, explaining that it was 60% after the costs of advertising, house rental fee to cover heat and cleanup, paying the light and sound guys, and of course his house managing fee.

This is what we call a pivotal moment. You can call the guy foul names, which might feel awful good at the time, but is also likely to lose you the opportunity to play at this--and possibly many other--venues. Or, you can swallow hard and realize that you had not fully understood the terms of your gig contract, and vow to do a better, more professional approach next time.



Legally speaking, a contract is a meeting of the minds. A lot of folks think of a contract as a written document, but that's not necessarily the case. Only certain kinds of contracts-- those involving real estate, those for projects lasting longer than a year--are required by law to be in written form. For most ordinary contracts, like an agreement to play at the Joe Coffee House on a Saturday afternoon for $200 plus tips and a cup of coffee, are legally binding even if they consist of just words and a handshake.

The first thing to think about in terms of whether you have a binding contract is clarity. Did your minds actually meet, completely, regarding the terms? Did Joe Coffee tell you that you're being paid $200, or did he say you were playing for tips and that some bands make as much as $200 in the tip jar?

A lot of venue managers dodge you when you try to pin down details on the logistics of a gig. Sometimes this is because they are being exploitative and venal. Most times it's because they are really busy running a restaurant or bar or concert hall and dealing with employees and vendors and a thousand other things besides your gig. Either way, it is really to both of your advantages if you can try your earnest best to sit down and clarify the details. If you can convert those details to writing -- on a scrap of paper while you talk at the bar, or in an email asking if these are indeed the terms that the house understood to be in effect, can indeed help if a conflict arises later, even though it's not technically necessary to make the contract enforceable.

What, then, do you do when your payment isn't what you expected? It depends. My band played our premier night at a restaurant venue that we were trying to negotiate into a regular monthly weekday-night gig. The owner said he'd pay us $100 plus dinner and we could keep all our merch sales. But when we got out to the van after packing up that first night and unfolded the $50 bill he gave us, we discovered the bill was all alone; he'd paid us $50 not $100. We sat there and talked about whether to go back and say something -- in this case, it was likely honestly just an error on the guy's part. But maybe not, maybe he just tipped us that for the first night before agreeing to pay us $100 for subsequent months. We realized neither one of us had been focused on the payment discussion as our attention was on the dangling carrot of a regular ongoing gig in a new town.  We opted to not say anything, as it might create a bad taste or bit of tension in what was promising to be a productive relationship. We said we'd watch next time and see what happened -- and from then on, he not only paid us the usual $100 each month but on good-selling nights he threw us extra. We more than made up for what might or might not have been a missing $50.

Granted, this was small potatoes, and we have day jobs so although $50 is $50, it was not going to kill us. When you're handed $200 while expecting a couple thousand, a face-to-face meeting to discuss how the discrepancy in understanding arose is well worth pursuing. The trick, however, is not to approach it with anger, but rather by asking if you can meet to review the event and the finances to make sure that any repeat performances meet the business needs of both you and the venue. The same approach works well in seeking clarity before playing at a new venue -- earnestly express that you are anxious to make the gig work for both of you and pursue both of your needs and expectations. This is a non-confrontational approach which will help bolster your reputation as a serious, professional entertainment organization.

If, after a face-to-face businesslike conversation, you conclude that you were indeed shafted and the venue reneged on a representation of what you would be paid, then consider consulting an attorney, or suing the venue in small claims court for contract violation if the missing payment is under your state's small claims court limit. Just realize that such an action will forever burn bridges with that venue--but some venues deserve to have those bridges burned, and your lawsuit may well encourage them to either change their practices, or at least serve to warn other performers of the dangers of gigging at that place.

Pay to Play?

I recently had an interesting go-round discussion with one of my Facebook musician friends, Steve Bentley of Greenman Rising, an awesome UK folk-rock band with an incredible sense of theatrics and stage presence, not to mention some extraordinary musicianship -- check them out at http://www.greenmanrising.co.uk/ or on Facebook. The subject of our civilized discourse was pay-to-play booking application services, like SonicBids.

I had mentioned booking something or another through SonicBids. Steve was aghast, and said that UK bands just simply absolutely won't pay to play.

Philosophically, point well taken, and the righteously indignant part of me has to agree with him. It seems rather outrageous--especially when half the time you're paying to apply to play at an unpaid gig, or one for a cut of the door that somehow never materializes because someone else remembered to bribe the bouncers into saying everyone was there for their band, not yours. Besides, screams the musician's soul, I'm an ARTIST! I do not PAY for the right to PERFORM MY ART!!!!

But, then there's the practical business side of me, the lawyer, the small businessperson, the mom and billpayer who is forever chasing Benjamins and has to make practical decisions. The facts run somewhat like this: Hard-copy promo kits cost us around $10 a piece to make. CD, folder, press clips, color photos, lists of venues etc. Dang, they look nice. So dropping them off takes $10 plus my time and gas. Mailing them is another couple bucks. A large percentage of the time, these hard-copy kits are just chucked in the trash. There's one Irish chain bar near us that seems to change managers about every 6 months, and each time we get a call asking us to send a promo kit. We've dropped off at least 12 to them in the last several years. That's a lot of dough-re-me for nothin'.

SonicBids costs me like $144 a year for membership, which hosts me a really nice quality electronic press kit which can be easily emailed--for absolutely no additional fee--to anyplace I want to email it to, and I can simply link to it in any email or social media posting. For this level of membership, we also get about 25 free submissions to lower-level listed venues each month, including radio airplay, tv and movie submissions, coffeehouses, festivals, and magazine reviews. I've had a pretty high level of success with these free submissions--for a whole lot less money than it would have cost me to hard-copy mail them a promo kit or even just a CD.

I sometimes do then also do paid SonicBids submissions to bigger venues, if they look like a close enough fit that the odds of us being selected are pretty high. I think our monetary return on these paid submissions has been about $40 to $1. Not a huge return, but compared to most investments, that really ain't bad.

It does distress me that more and more American venues are going to booking web services like SonicBids as the sole means of application. On the other hand, I can understand it from the venue perspective -- much faster to weed through a mess of electronic press kits, all in the same format, looking for the particular characteristics they are looking for, as opposed to pawing through piles and piles of promo kits that have all been done in different formats with different information.

I've also seen this happen in other realms, too. I do a lot of writing--journalism, fiction, poetry--and contests, literary magazines, and now even many small publishers are charging submission and readers fees to get your work considered for publication. More and more print publishers are either not paying at all for content, or paying ridiculous fees like $7 for a business feature with a photo--or, in violation of every ethical rule of journalism I ever learned in my youth, paying the writer only dependent on how much ad copy the ad department can sell related to the article. Similar changes have happened regarding art and photography. You have to pay for space at art shows or in an ever-increasing number of galleries. You are expected to put images up on the web for free for 'exposure'. And on it goes.

I tend to rail against all this because it tells me that we, the 21st century American society, do not value creativity and imagination. We talk a good talk about it, but when it comes to the universal method of showing appreciation--paying in cash--we walk away. I wish that I lived in a culture where art, music, and literature were highly valued and our artists, musicians, and writers were supported with a comfortable income sufficient to allow them to create without worrying where their next month's rent or next beer is coming from. But we ain't on the Island of Avalon, we are in business. And like all businesses, no matter how good you are, you still gotta buy your way in one way or another.

Pay to play -- I don't like it, but it's a practical business decision in which I'm doing the best I can in the environment I find myself working in, and so I do it. Tell my what you think-- Pay to Play, yes, no, depends? 

Getting Press

How do you get press coverage of your band?

Don't sit around waiting for the paparazzi to knock on your door. Send out a press release.

A huge, and rapidly growing, percentage of content in local and regional newspapers, in local radio station news, as well as on local television news, is not generated by the reporters for the paper or station, it's generated by the people who want to see the story in the paper or on the news. Mail or email in a written press release, with photos, or a video press release to a cable or broadcasting television station, and you have pretty good odds of seeing yourself in the news.

First, establish a good solid press list. Start with your local paper, and call or stop in to see if there are particular reporters or editors you should send entertainment and business news to. Determine if they prefer email (most) or hard-copy (a few stalwart hold-outs) submissions. Expand your list regionally as you play in new venues. Ask your Facebook fans for the contact information for papers and radio and television stations in their communities. Check with your state's tourism and marketing department or your regional chamber of commerce to see if they have a ready-made press contact list for your area. Go ahead and add Billboard and Rolling Stone to your press list along with any band review blog or entertainment press you know of; it can't hurt.

Second, have something to issue a press release about. The addition of a band member, release of a new CD or video or digital track, or winning an award are all fabulous press release fodder. You can go ahead and send press releases out for gig dates, too, just be aware that most media don't run gig listings as stories, but confine them to their calendars, unless you can attach a human-interest story to the gig. If you have the time to send some gig listings -- or better yet, a tour listing -- out as a press release, by all means go ahead, it can't hurt and it just might get in somewhere.

Third, create a professional, dynamic press release. Even an emailed release should follow the time-honored tradition of starting with the words ***PRESS RELEASE*** repeated across the top of the communication. You can add the words ***ENTERTAINMENT NEWS*** if you like.  For a video press release, specify ***VIDEO PRESS RELEASE*** up top.  Follow this with, "For More Information, Contact:" and the name, address, phone number, and email of the person who is your band's PR spokesperson. You can also include another entry "For digital photos, mp3s and background:" and write in the URL of your website or electronic press kit. Attach a relatively high resolution photo if you can; this will increase the odds of getting a nice chunk of page space. Then write the date, followed by, "FOR IMMEDIATE RELEASE."

Down a few blank lines, write the title of your press release. Skip a few more lines, and in all-caps, write the name of the town from which the release is being issued. Then start in on your text. Remember to make your opening statement follow the journalism Ws: Who, What, When, Where and Why. Add a second paragraph with some background or a point of connection between your band or event and the press region or audience. Close with a concise statement of how readers can find your CD or tune in to your radio show or get tickets to your concert. Keep it short and clear. Write in the third person, and consider including quotes from yourself to liven things up. Spell-check and proofread repeatedly, and have a few other people do it, too. Pay particular attention to the contact information; there's no point in sending out a press release directing people to the wrong place for tickets. End the press release with some indication of an ending -- usually *end* suffices.

Check the release one more time, then email it and hard mail it out to your list. Give it a day or two, then start Googling your band name and see where the press release showed up online. Link the published press to your Facebook or web pages. Skim hard copies of local papers at your library, and make photocopies of any articles. Scan these in to your webpages as well, and quote them in your electronic press kits.

The hottest press release tip of the day: Go to www.mi2n.com and click on "free news submission" near the top left of the page. Submit a short press release, with photo or link if you like, proof it carefully, and hit submit. The Music Industry News Network will send it out, free, to hundreds of music and entertainment news publications, blogs, message boards and more. Google your band name a few days after doing this, and you will find yourself appearing in the most interesting and far-flung places, some of which can be very exciting.

If you feel like dropping money for better press coverage, Music Industry News Network and many other press PR firms are happy to sell you massive press release distribution service and attempt to get you into glossy mags and international papers. If you're in starving musician mode like the rest of us, however, nothing gives you as much PR bang for the buck as a free press release.

Radio Distribution

How do you get your stuff on the radio?

As a new band, especially an indie band, it's not easy. You can mail a couple thousand dollars worth of CDs out to radio stations along with a perfect promo kit and pray they play your stuff. You can hoof it from station to station, trying to catch the DJs that play in your genre and talk them into taking a listen. You can submit to airplay listings on Taxi or SonicBids -- but somehow paying money to get your song run once over the airwaves doesn't seem economical, unless you've got plenty of dough-re-me to pour into it.

Fortunately there is an ever-increasing array of resources out there for small, independent, niche, or up-and-coming musicians. One I particularly love is RadioDirectX. No, I'm not a salesperson--I'm a very satisfied customer. You'll pay a couple hundred bucks to set up your radio music release with RadioDirectX, but they have a whole mess of release  options to choose from. Basically, you send them your music, and they put it out with a weekly release, making it available to station programmers and DJs around the world, flagged for your genre of music. You can opt to release the music in digital form only--so you don't have to pay postage mailing CDs to every station that requests it--or via CD and digital release.  For digital releases, the programmers who want your track simply lift it from the RadioDirectX site. For hard copy releases, they email you a note on your RadioDirectX artist page, and you mail them a disc.

Well over 95% of the programmers and DJs who take one of your tracks then plays it on the air, and lets you know when and where it was played. Rather than mailing discs into a black hole where they will never be heard again, you have nearly complete efficiency here.

And here's the real prize: In exchange for their getting free access to the music releases, the DJs and programmers who select your stuff off of RadioDirectX will email you back a review or comment on your music. You can then use these reviews and comments in your promo kits, advertising, websites, you name it.

My band O'hAnleigh is a genre group that plays in several niches: Irish-American organizations, festival and pubs; historical events like history expos and civil war re-enactments; and an array of music festivals, coffeehouses, dinners, weddings and so on. We are from a tiny corner of Vermont. But within a couple months of releasing our first CD on RadioDirectX, we were being played on folk and world music programs literally all over the world, from Australia to Belarus to Israel and India to Venezuela.  We got a world map and stuck it on foam board and set it up at our gigs with pins in it at all the locations our music was being played. And we turned the incredible feedback we got into a sheet of quotes that we include in our promo kits. Some of the best quotes we put on stickers and stuck on our CD cases when they went out for sale. And the contacts we made with these DJs and programmers didn't end there, we got emails much later asking us when our next CD was coming out and making sure we were going to send it along. We even got contacted to do live radio interviews and special promotions. We recorded tag lines for several of the stations, and sent along signed posters for the DJs to hang up in their booths.

I'm sure there must be other services out there similar to RadioDirectX, and by all means take a look and see what other options are available. This just happens to be the one I'm familiar with, and I must say that -- a rarity in this increasingly expensive and often negative world that seems intent on exploiting musicians -- we really got more than our money's worth out of these folks.

Catch you on the airwaves--
Cindy

Band Business Formation

A band is a business, and like any small business, it can take the form of any number of different legal structures. 'Choice of entity' is what the lawyers call the decision-making process by which you decide which legal form to use for your band. Factors that play into the choice of entity include how many people there are in your band, the finances of each of those band members, how much money you anticipate making as a band and whether you intend to use band funds for transportation, marketing, paying a manager or agent, or other business expenses. 

Choice of entity affects the income tax paid by either the band itself or its members, and impacts on the business relationship between band members as well as the band support staff. 

If you are a high school garage band, playing a few times a summer for free at friend's parties, you probably don't need to file the paperwork to turn yourself into a legal corporation. However, by taking no action, the law assumes that you are in fact functioning as a partnership. You should sit down and have some kind of agreement among the bandmates as to who is responsible for any expenses that arise, or how you are going to split any tips or payment you might receive, even if you aren't necessarily expecting any. If you start up a blog or website with paid ads on it, you might well wind up with a bit of income. The amount of money doesn't matter -- more friendships have been destroyed over $25 than over $25 million. Talk to your bandmates up front, before any expenses are undertaken or income arrives, to make sure you are all on the same page in terms of who that money belongs to. You might decide to split your $50 tip evenly among four musicians, or you might decide that the guy driving the van gets to deduct the tank of gas first and you'll split whatever remains, if anything. That's all up to you, but the important thing is that you all agree on it.

If, like millions of professional musicians, you are a solo performer, you may not think you need to form a legal entity to carry out your band business. If you are seriously trying to make all or a substantial portion of your living from your music, however, forming a sole proprietorship Limited Liability Company (LLC) has some distinct advantages. You'll get a separate tax ID number that can help ensure that your music business funds and expenses remain distinct from any other household income. You can get business property insurance for your instruments that isn't subject to the deductible on your homeowner's insurance. And you'll have some liability insulation between the business and the rest of your life and family possessions. Consult with your local tax professional to see whether these advantages are worth it for your particular situation.

Whenever two or more musicians are gigging for money on a regular, ongoing basis, a formal legal entity for the band is a good idea. An LLC formed as a partnership allows the band to have its own bank accounts with its own tax ID number, to apply for band credit cards (did I hear someone say, Musician's Friend account?) or gas cards, even to buy a band trailer or van as well as instruments and lighting and sound equipment. Yet the income for a band LLC organized as a partnership will pass straight through to each of the members without having to be taxed at the entity level as it would for a corporation. Band partners will set out in their Operating Agreement the framework of who is responsible for what tasks, whether they are getting compensated for those tasks, who has authority to write checks or make decisions, and how the income will be split up. LLC partners can either all have an equal vote in management of the entity, or they can assign the regular business of the band to a manager and authorize him or her to pay the bills and make the purchasing decisions. 

One advantage of partnership LLCs for a band structure is that the Operating Agreement can also spell out the process by which band members can leave and new band members come in. Instead of having to wholly dissolve the band, lose the name, or sell off the equipment because no one can agree as to who owns which light rack, the band as a legal LLC entity can continue on, with individual members retaining whatever rights or property is listed in the Agreement. Remember to include copyrights and royalties in your Operating Agreement, designating who will hold them and what happens to them if a band member leaves.  The Operating Agreement can spell out the conditions under which new members will be brought  on board, including a period of time without pay or without rights to royalties for CDs and digital tracks that have already been issued.

If you are going full-time with your band, and engaging employees like roadies, bus drivers, managers, agents and public relations professionals, a more complex structure like an LLC formed as a Subchapter S corporation, or a straight-up Subchapter C business corporation, may be the more protective and effective option. These more complex entities might also be appropriate if one of the band members might have a lot of financial risk in their outside activities, or has substantial assets that he or she doesn't want band creditors to be able to access. These more complex business entity structures usually require more complicated annual report filings and separate tax returns, though, so again, consult your attorney and tax professional to figure out which entity is best for your individual situation.

The most important thing is to have the conversation with your bandmates, gather information, and make a deliberate decision as to which legal structure will work best for your band before conflicts arise over rights, obligations and money.

Welcome to Band Biz 101

Got a band? Whether your sound is rock, folk, horns, or one-person-with-guitar, if you are performing, you are not just a musician, you are part of the music industry. Every song you write, every gig you play, every CD you produce or digital track you sell involves contract law, copyrights, sales and taxation issues, promotion and marketing. This blog is your go-to resource for running your band biz -- so you can spend your time worrying about your riffs and grooves, not your retainers and royalties. Rock on!