Venues Ask: Do I Have To Pay Those BMI Fees?

Small Venues Often Have Trouble Paying Royalty Fees

Small venues and music festivals often call me with the question: Do I have to pay those BMI or ASCAP fees? The answer is... well, you should, and the real problem is BMI and ASCAP's organizational attitude towards small and non-profit venues, not the fees themselves. 

In truth, these organizations fulfill a vital role for musicians. They collect royalties from all the venues where copyrighted music is played -- radio stations, cafes, juke boxes -- and pay royalties to their member musicians. If you are a musician, join one of these entities, and you'll start getting checks in the mail from them. Granted, if you're a local New England folk band, those checks will be in the pennies range. But they will grow -- and you never know where they will lead. My retirement-age folk musician friends get checks from these entities sufficient enough to pay, well, at least part of their beer bills. 

If BMI and ASCAP didn't do this, then each musician would have to monitor millions of play lists and send bills for their royalties each time one of their original songs or copyrighted arrangements was played--and we know that would never happen. BMI and ASCAP work on a simple principle of fairness and to prevent exploitation -- if a bar or restaurant is making money, i.e. selling food and liquor, by enticing in customers with MY music, then I really should be getting paid. They are making money off of me, and I deserve my due. But as in many ethical situations, the way it works on the ground is more complicated.

In order to pay the musicians their due, BMI and ASCAP collect annual fees from any venue with a jukebox or live music. (If you play the radio, or television, or Pandora, in your establishment, those entities pay the BMI and ASCAP fees.)  Those fees are not too high compared to, say, your liquor license -- but one big problem is that the cheapest fees are not cheap enough for the tiny New England open-mic coffeehouses that provide a venue for music more as a community service than as a money-maker. All-volunteer festivals, nursing homes that have local bands come in and play one day a week, and non-profit teen centers with open mics all should be paying royalty fees to the musicians whose work is performed there--being a non-profit or not charging money for an event does not exempt you from copyright laws--and the easiest way to do that is to pay BMI and ASCAP. But often these venues simply don't have the do-re-mi.

Then comes the attitude problem. The sales reps from BMI and ASCAP often approach venues with an arm-twisting, threatening attitude: Pay or we'll sue. This leads venues to despise them or at best begrudgingly pay while mumbling about what jerks these folks are. Maybe this works in New York City, where venue owners are used to protection rackets. It's counterproductive for community coffeehouses and church concert series in small northern New England towns. 

I wish that BMI and ASCAP would:

--Offer very cheap fee structures for nonprofit and small community ventures with, say, under 30 seats--better yet, get sponsorship from those muti-million dollar entertainment industry giants and offer free membership for these nonprofit and tiny ventures. This will bring more venues happily into the fold, encouraging the spread of live music, and getting the musicians who play at such things a leg up into the music performance industry.

 --Provide all venues, but particularly small and nonprofit venues, with a publicity packet that helps the venue tell the world that they are contributing, through BMI and ASCAP, to supporting musicians. Why not some, 'we support live music' decals, bumperstickers, t-shirts; why not some digital logos that can go on all the venue's posters and advertisements announcing live music? Make these entities something venues and musicians are proud to join, instead of a necessary evil.

--hire some new salespeople, and get a new attitude that SUPPORTS the small end of the music industry scale, rather than serving as a strongarm for the mega-industry end of things. 

Read more about royalty license fees here, in an article I wrote last year for the online newspaper Vermont Digger.

Musicians and venue owners -- how do YOU feel about paying and receiving BMI/ASCAP fees?

Band Law Basics -- A Workshop for the Musicians of the Keene Music Festival

http://bandbiz101.blogspot.com/

BAND LAW BASICS

A WORKSHOP for the MUSICIANS of the KEENE MUSIC FESTIVAL

1.  BAND BUSINESS FORMATION

n    -- Informal, no business structure or legal name. Each band member owns their own equipment. Can create problems when getting paid by check, has to be to one of the band members, and that person then has to claim the money as income. Can’t have a band bank account or credit card (like a Musician’s Friend account).  Might create conflicts if one band member is putting out large amounts of money for things like PA or lighting systems. Can create conflicts over use of name after band changes, and have to be clear about who owns what copyrights for originals.

n     -- Legal name/trade name/fictitious name registration. Person listed on the registration owns the name. Have to file and pay for renewals regularly. Can get an EIN for a trade name, which would allow for opening bank account and possibly getting credit cards in the trade name, but the person/s whose name its registered to are wholly responsible for payments and reporting the income.

n      --Partnership agreement. Can be informal but should be in writing; can spell out all the issues like who gets to use name, who can perform songs, what happens to equipment or income from CD or download sales after one person leaves the band.

n        --LLC or other small form of incorporation. Creates a legal entity for the band which is separate from the band members. The band is then its own legal ‘person.’ Can set up rules for what happens to a member’s share of the LLC if they leave the band. Can put all the band equipment in the LLC or corporate name, protecting it from bankruptcy or divorce of the individual band members. But not necessarily appropriate for young bands or pick-up groups likely to change membership frequently

2.  COPYRIGHTS

n     --Your creative works are copyrighted to you the minute you ‘fix them in a tangible medium’ – that is, get them out of your head and onto paper or a digital track or tape.

n    ---However, in order to defend your copyright legally by suing copyright infringers, you need to register the copyright with the copyright office. This is cheap and easy to do and can be done online. Register a whole collection/album at once to be even cheaper.

n      --www.copyright.gov  Get to know it, make it your friend. Read it often, check all the FAQs and fact sheets regarding music.

n     --You can perform other people’s music – i.e., covers – at any live venue, but if the venue is not paying its ASCAP/BMI dues, then in theory you are responsible for paying the royalties. It’s exceedingly rare for anyone to go after musicians who played covers live, however. But they do go after venues that are having music performance and not paying into ASCAP or BMI.

n     --A tricky issue arises because when you play live, people record you and then post those recordings. Some artists/record companies do come after people who post copyrighted recordings.

n    --Get a license before recording any covers, audio or video. If someone is going to videotape your live performance for local TV or a website, review your setlist and clue them in to shut off cameras for copyrighted material.

n     --Play your own originals as well as traditional music, and you’ll be fine. Sampling without permission is a big copyright problem; create your own tracks of classical, traditional or your original music to run samples from, or obtain samples with permission from Creative Commons sites.

Call to Action: Persuading Fans to Get Off the Couch

What's the difference between letting people know about an upcoming gig, and getting them to actually come out for it? It's a principle of persuasion known in the political and public speaking fields as a Call to Action.

The importance of moving beyond spreading-the-word and instilling actual motivation was recently illustrated by Invisible Children's Kony 2012 campaign. Invisible Children's Kony 2012 video urging US military action against the notorious African warlord was held up as the poster child for effective viral social media activism. The video was viewed by tens of millions of people, and raised money through online donations and through merchandise sales at college campuses across the U.S. 

One focus of the video was to promote an event on April 20, 2012, called Cover the Night. The theory was that millions of college students would spend the night plastering walls with posters and murals advocating that the U.S. stop at nothing to secure Kony's capture.

Despite the viral popularity of the video, however, almost no one showed up on April 20, and Cover the Night didn't happen. What was the disconnect?

There were actually two main disconnects, one being that the Invisible Children leader who had made the video and focused the video's message strongly on himself and his own righteousness, had a very public breakdown when the film was subject to cultural criticism. News reports talked about being naked and beating on cars in the street, and the family begged for privacy. College students looking for a leader drifted away from the cause instantly when that leader collapsed.

Take away lesson for bands: If you are basing your marketing around an individual front-person, make sure that person is up for the task. If you are trying to sell your fans on the idea of coming out to see Joe or Mary Rock Star, then Joe or Mary Rock Star better be there with bells and whistles on to give them the show they want, and not stuck in a drunk tank or sitting home with a cold having a break down because the stress of popularity is too much to handle.

The other main disconnect was the content of the message, which was lacking in the elements needed for genuine persuasion. Key among these elements is convincing your audience that the experience they will have coming to your event is far superior than that they will have sitting home on the couch. This usually involves offering your audience a choice to stay home or go out, while making it clear that they will regret it if they stay home.

The Kony Cover the Night event encouraged people to participate in activities for which they might get arrested for vandalism and property damage (plastering posters on private and public property), but most importantly for which there was no image offered of how great their night or next day would be if they did this. There was no hint offered that the audience would regret not going out that night -- so not going out became the easier, default course of action.

Take away lesson for bands: It takes a lot of effort to come out to one of your gigs. It means paying money for transportation and tickets and drinks; it means being too tired the next day to work or spend time with friends and family; it means getting pried out of the comfort zone of the couch and whatever video games or TV shows the person would otherwise be cozily engaged in that night. You need to convey to your audience that the experience of coming out to your show will far, far outweigh these negatives. Make it clear that they will have a great time, and if their friends go and they don't, they'll totally regret that they weren't there. Don't belittle them; don't tell them that they owe it to you or that you're broke and if they were really a friend they'd come see you; don't guilt or berate them into going. Persuade them that they will leave your show feeling happier than they have ever felt.

And then, of course -- deliver. Make your audience smile, laugh, dance, hug one another, feel the love, and leave wanting more. Make sure they go back and tell their friends -- Yah shoulda been there!

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.