In case anyone didn’t know: Saskatchewan makes the best music in the world, and the world is starting to realize it. HUGE congrats to my good friends and clients The Dead South on your JUNO for Traditional Roots Album of the Year!!! So proud
I never attended drum clinics when I was starting out, probably because I was too shy or scared or didn’t have the money. So that’s why this – my first ever drum clinic – is aimed at every kid in Saskatoon, no matter what your level. Maybe you’ve never had a lesson before. Perfect. Maybe you’ve never even played drums before. Perfect. Come hang and talk music, and I’ll tell you how it changed my life. Oh and it’s free. See you Saturday!!
Your newsfeeds might be buzzing with the news that Radiohead are suing Lana Del Rey over her song “Get Free,” which they say plagiarizes their 1993 hit “Creep.”
Lana Del Rey tweeted yesterday: “It’s true about the lawsuit. Although I know my song wasn’t inspired by “Creep,” Radiohead feel it was and want 100% of the publishing – I offered up to 40 over the last few months but they will only accept 100. Their lawyers have been relentless, so we will deal with it in court.”
Now, here’s where the plot thickens: what some news outlets are missing is that Radiohead was previously sued for plagiarism. The song they were sued over? “Creep.” The song shares a similar chord progression and melody to the song “The Air That I Breathe,” written by Albert Hammond and Mike Hazlewood and initially released on Hammond’s 1972 album It Never Rains in Southern California. The song became a major hit for The Hollies in 1974.
You can hear the three songs here:
Hammond and Hazlewood sued Radiohead for plagiarism and won. Radiohead claimed that the similarities were unintentional and subconscious, but agreed to give a percentage of the songwriting royalties and songwriting credit to Hammond and Hazlewood. According to Hammond, “Radiohead agreed that they had actually taken it … Because they were honest they weren’t sued to the point of saying ‘we want the whole thing’. So we ended up just getting a little piece of it.”
So: Radiohead is suing Lana Del Rey for plagiarism over a song that they actually plagiarized. The irony is strong with this one! This is the kind of case that gets entertainment lawyers (and music fans) very excited.
Plagiarism Cases More Common
Music plagiarism is a hot topic in the music industry these days. From Sam Smith to Bruno Mars to Ed Sheeran, artists seem to be accused of music plagiarism more than ever.
Del Rey is the latest in a string of high-profile artists to be accused of copying. Sheeran settled out of court with a pair of songwriters after similarities were found between his song Photograph and the Matt Cardle song “Amazing,” and also retrospectively added the writers of TLC’s “No Scrubs” to the credits of his enormous hit “Shape of You.” As we examined in my article here, Tom Petty and Jeff Lynne were added to the credits for Sam Smith’s “Stay With Me” in 2014, while in 2015 Robin Thicke and Pharrell Williams were successfully sued by Marvin Gaye’s estate for $7.4M, after it was found that their “Blurred Lines” plagiarized Gaye’s song “Got to Give It Up.”
What makes the Lana Del Rey and Radiohead case particularly interesting is the fact that both artists have a very impassioned, vocal fan base.
The comment section on the “Get Free” video is full of arguments on either side, and makes for some entertaining reading: “The Radiohead lawsuit brought me here. Similarities aside (and as a Radiohead fan for the past 20+ years), I must say this song is actually pretty good. Never heard of Lana Del Rey before this, but I’m glad I did. Thanks Thom!”; “Radiohead must need the money so they can pay the original writers of their song”; “yes they sound similar, but ask for 100% of this song’s profit? Didn’t Radiohead steal it from the Hollies as well? don’t they feel ashamed?”; “this song is really creepy”; and “this song sounds like Gucci Gang by Lil Pump…Lana a thief.”
Now that we’ve heard from the court of public opinion, what does the law say?
The Legal Test for Plagiarism
What constitutes music plagiarism? The line between inspiration and plagiarism is a fine one, and is the crucial distinction when it comes to music plagiarism.
As poet T.S. Eliot famously wrote: “Immature poets imitate; mature poets steal.”
The law states that anything that reflects a “minimal spark” of creativity and originality can be copyrightable, including melody, chord progression, rhythm and lyrics. In the event of a trial, the person claiming infringement must prove two things:
1) Access – that the infringer had heard, or could reasonably be presumed to have heard, the original song prior to writing their song; and
2) Substantial Similarity – that the average listener can tell that one song has been copied from the other. The more elements that the two works have in common, the more likely they are substantially similar.
Did Lana Del Rey Plagiarize?
Disproving “access” in 2018 is becoming more and more difficult, as music is ubiquitous and accessibility to any major hit is hard to deny.
So that leaves us with the test of “substantially similarity.”
It doesn’t take a trained musical ear to hear the similarities between “Get Free” and “Creep,” as well as “Creep” and “The Air That I Breathe.” The three songs are in different keys, but they follow an almost identical chord progression, played at approximately the same tempo.
The common thread between the three songs is the final chord in the progressions, which happens to be a minor chord. It gives all three songs a darker feel at the conclusion of the chord progression.
This is called a “minor fourth,” and it creates a hook because it doesn’t technically fit the key of the piece. It stands out and makes the progression memorable.
It is sort of the reverse of what Leonard Cohen famously referred to as: “the minor fall and major lift.”
Countless pop songs have used this technique over the years, including doo-wop hits of the 1950s, the Beatles songs “Blackbird” and “I Saw Her Standing There,” and David Bowie’s breakthrough “Space Oddity.”
In other words, there is nothing copyrightable about the minor fourth in and of itself.
My opinion: the verse melodies in the two songs are very similar, while the instrumentation is different. The choruses are quite different, in both melody and instrumentation.
But the similarities in the verse melody is striking, and in addition to the same chord progression, the phrasing of the vocal is very similar. To me, this warrants some songwriting for Radiohead.
But 100% of the songwriting? That’s just greedy. If Lana Del Rey did in fact offer 40%, I think Radiohead should have taken it, or maybe pushed for 50%, especially in light of their song’s plagiarism history.
The real irony is that Radiohead had all but disowned “Creep” since it’s release, refusing to play it in concert for years at a time and calling fans who requested it “anally retarded.” Their attitude towards the song seems to have changed in recent weeks!
The question remains: if Lana Del Rey is found to have plagiarized “Creep,” does that mean that Hammond and Hazlewood will also get a cut of the songwriting? We must always be mindful of the statute of limitations, but as we saw in the Led Zeppelin trial, this did not stop a case being brought for royalties going forward.
Whatever the case, this dispute promises to have far-reaching effects on the music industry, and a lot of people (myself included) will be watching it closely in the coming months.
I get asked this all the time. Do I need a record label to help my career? It used to be that a record deal was the holy grail of the music industry; the brass ring that all artists worked towards.
This is no longer the case. While record deals are still a vital part of the music industry, their role – and the role of the record labels offering them – has completely changed.
Record labels used to take the approach that for every artist that was a financial success, there would be nine failures. In other words, 10% of the artists paid for the 90% of artists that lost their labels money. In the glory days of record sales, there was enough revenue floating around for labels to hedge their bets and invest in artists over a period of years, with the hope that more artists would become financial successes.
This has all changed.
Record labels can no longer invest in artist development over long periods of time, and they are choosing to invest in fewer artists. Bottom line: labels can no longer afford to lose money on 90% of their signings. While Bruce Springsteen took three albums and a great deal of investment from his label to finally break through in 1975, he would not likely be afforded such investment if he came along as a new artist today.
Simply put: record labels want to sign acts that are already developed. There are exceptions, but this is the general trend occurring in the industry.
This begs the question: if a record label is only interested in you once you’ve done all the heavy lifting, do you really need a record label in 2017?
To answer that, let’s look at what record labels can still provide you.
First and foremost is funding. Record labels have always acted as the banks of the music industry, providing funding and investing in your career in ways that you cannot. In exchange, their charge an “interest rate” like a bank, in the form of record royalties, and increasingly, a piece of other revenue streams as well.
If you happen to have financial support from someone else, be it a rich uncle or a music-loving investor, then you need a record label less. Many clients of mine that have achieved great financial success go on to create their own label, and reap the benefits of regaining control of their recordings.
Assuming you don’t have such financial backing, the need for a label increases. The cost of recording a professional sounding album has definitely decreased in recent years, but it can still be considerable. The same goes for music videos. But if you have friends that are producers or videographers, or you can do it yourself, that makes you less reliant on label funding.
The second thing a record label provides is exposure. In the pre-Internet world, bands were much more dependant upon major label investment to gain exposure through old world media outlets of print, television, and radio. This has all changed. While you still need these mediums to some degree, they are less of a barrier to entry when promoting your music. You don’t need a record label to get through the promotional bottleneck that all artists had to squeeze through previously. You will still need some funding to service your single to radio and to hire a publicist for print and TV, but these services can be obtained outside of the major label system.
The third major service provided by a record label is distribution. In the pre-Internet industry, this meant physical distribution of your record to stores. This is less important in 2017, with only the biggest musical artists receiving large scale distribution to mega-chains like Wal-Mart and the like. You can release your record around the world with one click via services such as CD Baby. Of course, everyone else can do the same, meaning the real hurdle in 2017 is not distribution but exposure.
As with anything, it’s a question of degree. Major labels are a different beast than indie labels, and there are many mid-size labels in between. They all offer different services and demand different things in exchange. It really depends on where you are at in your career and what you need to take it to the next level. The takeaway: you do not need a label to get to the next level.
As always, email me with questions along the way.
If you write your own songs, at some point in your career you will want to consider whether signing with a music publishing company makes sense.
Music publishers are sort of like record labels, but for your compositions rather than your master recordings which embody your compositions.
The right music publisher can take your career (and your earnings) to the next level. The wrong publisher can do the opposite. As with choosing a record label, choosing a music publisher is one of the most important decisions of your career, and should be treated as such.
Here are some things to consider when looking at signing with a music publishing company:
Is it the Right Fit?
In essence, all music publishing companies do the same thing: they license your songs and collect your music publishing revenue. However, every music publishing company does this differently. Some publishers work very closely with their writers, arranging co-writes, providing feedback on compositions, and generally guiding the direction and growth of their writers’ careers. This sort of “proactive” publisher often has a creative team that works directly with the writer, and actively pitches their songs to music supervisors, corporate clients, and labels.
On the other end of the music publishing spectrum are more “reactive” companies, that focus more exclusively on administration. These publishers are happy to approve a placement that lands on their desk, but won’t actively pursue it. This music publishing entity is essentially an accounting firm that assesses the value of a potential client’s catalog and earning potential, and buys a piece of it for a price. This “price” is known as a publishing advance, and can be quite sizeable. Seven figure music publishing advances still exist in 2017. Indeed, music publishing is one area of the music industry that continues to have serious value, despite the downturn in music sales.
When is the Right Time?
For most songwriters, signing a music publishing deal is a question of “when” rather than “if”. So: when is the right time? The answer is different for every songwriter, but something I have learned over my years as an entertainment lawyer is this: you will know when the time is right.
Sometimes a deal comes in the first year, sometimes it takes a few decades and a thousand songs. Last year I negotiated a million-dollar music publishing deal for a client who at the time had only written and released seven songs. The hype and excitement around this particular writer was exceptional and of course atypical, but it was quite clear based on the offers being tabled that the time was right to strike a deal.
Most of us aren’t so fortunate, so it’s really a matter of doing your thing until the right offer is presented. It might take one year; it might take twenty.
Do You Want a Major or an Indie?
Many of the largest publishing companies are directly tied to major record labels. Warner Chappell and Warner Music; Universal and Universal Music Group; eOne Publishing and eOne Recording; Nettwerk Music Group and Nettwerk Publishing.
Many indie companies contract a major to administer their catalog. Then there are the “fully indie” companies that do it all themselves.
As with the record label discussion, it’s really up to you to determine what size of publisher is best for you.
While the smaller publishers might be more personalized and focused on you as an artist, they might lack the connections of the big time players.
And while the majors have the connections and the resources to take you to the top, you might get lost in the shuffle of the other clients on their roster, when your songs are competing against those by Beyoncé, Coldplay, Adele, etc.
Why Do They Want You?
As mentioned earlier, all music publishing companies essentially do the same thing. One question I always pose to my clients: why does this particular publisher want to sign you? You’re giving up 25% to 50% of all your publishing revenue streams, so they better be worth it. Why are they excited about your songs? What do they plan to do with them? What placements or endorsement deals do they think fit your brand and artistic vision?
Before you sign away a significant chunk of your music publishing revenues, make sure someone at the publishing company is excited about your music and has a plan for it going forward. You also want to make sure that this person will be available and responsive to your questions and concerns after the deal is signed.
Do You Need a Publisher at All?
Many songwriters self-publish, and avoid signing with a third party publisher at all. Songwriters who retain their publishing rights and earn 100% of the publishing income generated by their songs. In addition to earning twice the revenue, self-publishing ensures that you control all creative and business decisions regarding your songs.
The major drawback to self-publishing is similar to that of self-releasing your music: you miss out on the benefit of the connections and clout brought by a publisher (or record label).
In other words, as a self-published artist, you will have to secure placements and generate income yourself, while handling the accounting and administration. Some artists are good at it; many are not. Ask yourself whether you have the knowledge and time to be an effective publisher, and what sort of demand your catalog is generating.
Signing with a music publisher can take your career to the next level, but be sure you do your research, pick the right one, and know what to expect going forward. As always, send me questions along the way.
As a songwriter, you have likely heard talk of self-publishing your compositions. You’ve likely noticed, while perusing the fine print in the liner notes of your favorite albums, that nearly all major artists have created their own publishing company.
This means that they’ve incorporated a publishing company, through which the publisher’s share of income flows.
The other half of publishing revenue, known as the writer’s share, flows directly to the individual writers, and cannot be assigned or transferred to a publisher.
So: why do major artists self-publish and should you do the same?
The “why” is fairly straightforward: for tax and liability reasons. When your songs are earning enough revenue, it makes sense to incorporate to allow the publisher’s share of revenue to flow through a company rather than you individually, and thereby be taxed at a much lower corporate rate. From a liability perspective, god forbid you are ever sued for plagiarism, the party suing can only go after the corporation’s assets, not your house and car.
The “when” is not so clear. I say “when” rather than “if”, as all songwriters incorporate a publishing company at some stage. When is the right time for you? If your songs are earning under a few thousand dollars a year, it doesn’t likely justify the costs of incorporation and maintenance of the company. As long as you’re registered as a writer with SOCAN in Canada and ASCAP/BMI in the USA, you will receive 100% of the publishing revenue, as an individual.
There are few scenarios that might indicate that the time is right. If you find yourself licensing music internationally, entering a sub-publishing deal with a foreign publisher, or being offered a co-publishing deal from a third party publisher, the time is right to incorporate your own publishing entity. This entity would then be the contracting party to the above agreements.
Another scenario is if you want to act as a publisher yourself and sign other writers to your company. This involves administering the rights of these writers, including issuing licenses, collecting revenues and distributing royalties.
Once you establish that you’d like to self publish, call your performing rights organization (PRO). They will perform a name search, and let you know if you have the green light to register the business name with the government. You will likely need to be creative in selecting your company name because any name that is identical or too similar to an existing music publishing company will be rejected in order to avoid confusion and the potential of payments being issued to the wrong company.
Once you’ve successfully incorporated and have a business bank account set up and confirmed with your PRO, you complete an application with the PRO, sign a publishing agreement (consult with an entertainment lawyer), and you are in the business of publishing.
Remember, being self published and being a successful publisher are two different things, so you may still want to partner with a publishing company when the right opportunity arises. For more on this topic, email me.
Whether you’re a seasoned touring musician or about to embark on your first tour, there are many things to take into consideration before hitting the highway. Here are the 16 questions a touring musician should ask before loading up the van:
1) Are Your Gigs Confirmed & Contracts Signed?
This might seem like an obvious starting point, but I know numerous touring musician friends and clients that have shown up at a venue to play, only to find that the promoter has double booked another band or event (or has completely forgotten that the show was booked in the first place). As you can imagine, things don’t go well from here. Make sure all your shows are confirmed and all contracts are signed. Verbal acceptance over the phone or written acceptance via email will not suffice. Unless you receive a signed contract from the promoter, you will not have any remedies if things go south. An experienced touring musician knows the important of a signed contract.
2) Have You Received Deposits for Your Shows?
One way to help avoid being double booked or cancelled last minute is to receive a deposit in advance. Fifty percent of the guarantee is an industry standard deposit. Once the promoter has spent their own money, they are less likely to forget about the show or cancel it last minute. If you’re working with a major booking agent, they will likely demand half the guarantee well in advance of the show. If you’re self-booking, I would still ask for half the guarantee in advance, but this will likely require that some sort of contract be in place.
3) How Are Gig Cancellations Dealt With?
Shows are cancelled all the time. Whether you’re AC/DC or a regional touring musician, you need to know how what will happen if the show is cancelled. Reasons for cancellation might include sickness, injury, force majeure (legal jargon for “act of God”, i.e. tornado, hurricane, flood, etc.), a change in availability, a breakup of the band, or a better opportunity arising (for either the artist or the venue). Whatever the case, the contract signed with the promoter should clearly state how the cancellation will be dealt with. I always suggest inserting language indicating that if the promoter cancels less than thirty days in advance of the show, the entire guarantee must be paid to the artist. If the promoter gives more than thirty days’ notice of their cancellation, then only the deposit is forfeited. If the artist if forced to cancel, typically the deposit is simply refunded to the promoter.
4) How Will You Get Paid?
The currency in which you’ll be paid might seem obvious, but I assure you it’s not. Whether you are being paid in cash, cheque, e-transfer or beer, the discussion needs to be had ahead of time. I’ve had promoter’s cheques bounce when I tried to cash them two days later. I’ve had e-transfers denied because the promoter’s bank didn’t work with the artist’s bank. I’ve had dozens of promoters attempt to avoid paying tax on the guarantee (innocently or not). Remember: touring musicians must pay the tax on their guarantee to the government anyway, so if you fail to collect it, you are actually reducing your guarantee accordingly. Tax is applied to the entire guarantee, not just the half of the guarantee that you collect at the show. More times than not, promoters will think the tax applies only to the remaining half. Depending on the size of your guarantee, this can cost you hundreds or thousands of dollars.
5) Will You Receive Per Diems?
A savvy booking agency will negotiate per diems in to your guarantee, so that each member gets a little extra cash to cover food and expenses. But you don’t need a booking agent to ask for per diems. Don’t ask for the moon if you’re a start up band, but proposing a per diem of $20 per touring musician would be in line with industry standards, and might actually come across as more professional. Again, it depends on your draw and the level of your band, so be reasonable.
6) Who Will Be Paying You?
Having a signed contract and knowing the amount that you are to be paid is great, but tracking down the person that will be paying you is a different story. I always recommend that touring musicians advance this information with the promoter ahead of time, and asking for a cell number and email address for your day-of contact. Many times, the person who books your band is not the same person that will be paying you at 2am. Reach out to this person via text or email the day of the show, and establish that line of communication. And then plan to meet shortly after your set at a certain location (venue office, back bar, etc.) to settle up. Bigger artists will sometimes demand payment before they go on stage. Unless you’re playing arenas, this is not likely going to be the case.
7) Will the Venue Take a Cut of Merch Sales?
This is a big one, especially in recent years. As a touring musician, I’ve seen this really expand in recent years, and not in our favour. More venues are taking a higher percentage of your merch sales than ever before. Whether this a shameless money grab or a reflection of the current economic realities of live music venues is a debate (and an article) in and of itself. Not all venues take a piece of merch. However, what I’ve seen in the last few years is that most venues will take 10 to 25% of your gross merch proceeds. As an artist myself, I always fight this as much as I can, and try to push this number as low as possible when negotiating the show. For me, merch is what puts food in your belly and gas in the tank, and venues should leave it alone. Venue owners argue that without their venue, you wouldn’t sell merch. I would argue that, without your music, they wouldn’t sell any liquor that night. So by their logic, you should get a piece of their liquor sales. Not surprisingly, I’ve yet to be successful with this argument, but feel free to use it when negotiating the merch issue. Tell them LawyerDrummer sent you 🙂
Another thing to bear in mind is that the venue will charge you an additional fee if they are providing someone to sell your merch. Depending on the size of your band and the size of the venue, this vendor fee can range from $50 to $100 per vendor. If you’re travelling with someone who can sell merch for you, then you of course save this fee. However, there are obviously other costs associated with adding to your touring entourage. From my experience, you can often get a reduced vendor fee if you agree to give the person slinging your merch a signed t-shirt.
8) Have You Confirmed Travel Route & Accommodations?
This is simply a logistic consideration. When you’re planning your travel route, make sure you’re avoiding any closed highways, heavy construction, natural disasters, etc. Many touring musician friends have missed gigs because they’re stuck on a highway waiting for a highway to reopen. Also, if you’re driving through the night, make sure you choose a route that will have open gas stations along the way. My band once embarked on a 55-hour straight drive from Toronto to Vancouver, through the Northern United States, and we had to plan our nighttime gas stops accordingly. In case you’re wondering, I don’t recommend driving that long without a hotel stop J
When it comes to accommodations, I strongly suggest against leaving the hotel booking until the day of the show. Hotels book up and/or rates shoot up unexpectedly, so book ahead. If you need to request a late check-out or early check-in, most hotels are accommodating and it can make all the difference on a long tour.
9) Do You Have the Right Documentation for Border Crossings?
Once you know your routing, make sure you have all documentation necessary to cross international borders as needed. There are countless stories of touring musicians both big and small that have been turned away at the border (or fully detained), causing them to cancel shows or an entire tour. The modern reality: border crossing is a serious thing and not to be taken lightly. Have all documentation ready, including updated passports, a work VISA if needed, a gear manifest and merch manifest, and a complete list of tour dates and routing when crossing international borders.
10) Do You Have Insurance on Your Gear?
Sadly, the number of times I’ve heard of touring musicians having entire vans or trailers full of gear stolen while on tour is quite high. And they never seem to have gear insurance. My band has a lot of expensive, top of the line gear, and we pay around $800 a year to insure it. Prices vary from state to state and country to country, but the principle remains: if you take your career seriously and plan to do any real touring, you need gear insurance or you’re playing with fire. Insurance will protect your gear from more than just theft; it will also protect it against damage from fire, flooding, etc. It’s worth making a phone call to get a quote, in advance of your next tour.
11) Do You Have the Right Phone Package?
This might seem simple but it’s something that every touring musician should consider: what additional costs will be incurred based on your tour routing? If you’re travelling outside of the country, this becomes more important. But perhaps your data plan is small and in order to properly promote this tour you need to increase it. If you are touring Europe, for example, perhaps you cut roaming costs by having one phone that all band members can use. The bottom line: you don’t want to come home with several hundred dollars in extra phone charges.
12) Do You Have Enough Backup Supplies?
This can mean extra drum skins, sticks, even an extra cymbal or two. There have been a few times on tour when I’ve broken my kick pedal and had to rely on the opening act’s drummer to rescue me. A backup pedal isn’t the worst idea. I’ve also broke through the beater skin on my kick drum a few times, and finding a replacement 26-inch skin at the venue wasn’t going to happen. So pack extras of everything and throw them in the van or trailer, and be prepared when this happens.
13) Have You Sent Out Your Tech Rider and Hospitality Rider?
Giving your sound tech an idea of what gear you’ll be using, what your stage setup looks like, and what special requirements you might have goes a long way for any touring musician. The tech will likely appreciate it, and it will help avoid any last minute technical issues. Perhaps you are using in-ear monitors and don’t need him to spend time working on wedge monitors. Perhaps you have an pre-recorded intro that you play as you walk on stage. Perhaps your singer has a wireless mic that won’t get good reception in the basement bar. Perhaps the venue cannot accommodate 8 vocal mics. All of these points should be dealt with ahead of time by advancing your tech rider to the promoter.
The same applies to your hospitality rider. Don’t expect to get pulp-free, non GMO coconut water and gluten free, artisan bologna sandwiches unless you advance this with the promoter and have them sign off on it. If your expectations are too high in terms of hospitality, the promoter will let you know.
14) How Long Are You Playing Each Night?
This should be confirmed in the contract and reiterated at sound check, so every band knows how long and what time they are playing. A smart promoter or venue rep will print out set times and tape them to the stage and dressing room. Going beyond your allotted time as an opening act, even if you start late, is a major faux pas. It doesn’t matter that the band before you went over. Let them be unprofessional. Finish before your cut-off time, not after. When my band toured arenas with Def Leppard, their stage manager told us stories of bands that had been kicked off arena tours for going two minutes over their set time. An experienced touring musicians will finish two minutes early instead, and tear their gear off stage immediately. The headliner (or more likely, their people) will appreciate it and it will go a long way. As a headliner, my band has had opening bands play 15 minutes longer than they should, and we never had them open for us again. It’s just unprofessional, and will undoubtedly close doors for you.
15) Who is Providing Sound Equipment and Backline?
This might seem obvious but trust me: I’ve seen many touring musicians show up at venues expecting that a sound system has been provided, and the dumbfounded look from the venue owner confirms otherwise. The resultant dash to the local music store to rent a full sound system (if you’re lucky enough to find one) is never cheap, and never a good thing. Advance these details with the promoter, and get an idea of what sort of gear you’ll be playing through. They might not have enough microphones for your 18 piece Neil Peart inspired setup.
The issue of backline becomes more of a consideration at festival shows, where headliners are flying in and drums/amps/etc. are provided for each act. But I’ve seen it apply to club shows as well, where all drummers are expected to share the same kit. It can be awkward when four sets of drums are lugged up a stairwell and the shared kit news is shared with everyone. A smart touring musician will advance this information with the promoter, and if you need certain instruments to be provided, be crystal clear in what those instruments are.
16) Can Your Performance Be Recorded and Exploited By the Promoter?
One final consideration to ponder is whether your performance can be recorded and released by the promoter. In the content-obsessed era that we live in, this is something that I’ve seen come up more and more as of late. Many festivals, for example, require that the performer’s set be filmed and used by the festival as they see fit. Perhaps you don’t want this, or you want to be the first to release this live recording to the public. If the festival or venue has the ability to sell the live performance in any form, that’s a red flag. Obviously, a great deal depends on the bargaining power of the promoter and the touring musician, but for now, it’s something that you should at least be aware of.
There are other things to think about before touring (what happens if your van breaks down), but this is a good start. As always, feel free to email me with any questions and best of luck on the road!!
A Band Agreement is likely the most important agreement you can sign in a band. I say this based on my years as both an entertainment lawyer and a band member. It costs relatively little, and could save you thousands upon thousands of dollars (and a great deal of headache) years down the road. Yet most bands do not think about a Band Agreement until it is too late.
What is a Band Agreement?
A Band Agreement is a contract between band members, much like a partnership agreement is to a partnership. It simply outlines how the band business will be run. If you don’t run your band at least somewhat like a business, please stop reading and choose an easier career. You won’t make it in this one.
Some of the main issues covered in the Band Agreement include:
– who owns the compositions
– who owns the master recordings
– who owns the band name
– what happens if a member leaves
– how decisions are made (i.e. majority vote, unanimous decision, etc.)
– how revenue is divided from touring, record sales, merch sales, publishing revenue, etc.
– who owns the music equipment (band or individual members)
– who can sign contracts and cheques on behalf of the band
– who can hire/fire members
– and much more
Why Have a Band Agreement Drafted?
The Band Agreement is perhaps the single most important document a group of musicians can have to ensure that things in the group run smoothly as their career progresses. Whether you are a new band or a well-established one, you need this agreement. Most of the legal issues that come across my desk could have been avoided with a proper Band Agreement in place.
Yet most bands do not think about signing one until it’s too late…and it comes back to haunt them.
What Happens If You Don’t Have a Band Agreement?
I get many emergency calls from musician clients of mine across the country. Often when a member quits, threatens to sue, or simply refuses to let the other members carry on as a band.
Without a Band Agreement in place, any one member of your band might be able to stop you from using the band name if he/she chooses. In fact, they might be able to start their own band and use your existing band name. They can also stop you from exploiting the songs that you’ve worked to hard to write and record. They might be able to withdraw band money from the band bank account.
It can create a stressful situation to say the least.
Is a Band Agreement Worth It?
While buying a new guitar, new touring van, or new merch often takes priority over something as mundane as a legal agreement, I can’t emphasize enough how important a Band Agreement will be for you and your band going forward. It’s either a few hundred dollars now or thousands of dollars later, when sh*t hits the fan. And sh*t often hits the fan.
Some examples of high profile legal disputes between band members include Pink Floyd (both David Gilmour and Roger Waters laid claim to the use of the band name, and for a time there were actually two versions of Pink Floyd tour simultaneously), and Guns n Roses (Axl successfully established his right to the band name, even though more of the original members were together in another band – Velvet Revolver of course). Members from both bands spent hundreds of millions of dollars for a judge to determine what could have been determined from the outset in a Band Agreement.
Make it happen!
I have drafted hundreds of Band Agreements over the years, for all levels of artists, big and small. Email me if you have any questions about the process, and whether it is right for you.