My First Drum Clinic!

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!!

The Lana Del Rey and Radiohead Plagiarism Case: What You Need To Know

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:

Lana Del Rey – “Get Free”

Radiohead – “Creep”

The Hollies – “The Air That I Breathe”

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.

 

Should You Sign a Music Publishing Deal?

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.

16 Things Every Touring Musician Should Ask Before Going on Tour

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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.

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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.

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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.

touring musician

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.

touring musician

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.

touring musician

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.

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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!!

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What Rights Do You Have in a Sound Recording You Play On?

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I get many emails every week from musicians around the world asking me questions about the music business. One of the most common questions is: what rights do I have in a recording that I performed on? Whether it’s a song you played on decades ago that was just re-released by your former bandmates, or a song recorded last week that has yet to be released, the same principles apply. And whether you’re a drummer, guitar player, oboe soloist, or David Lee Roth, the law is the same.

Your Rights: Two Main Copy Rights In A Recording

A starting point is understanding the two main copyrights in a recording: one in the written composition (the songwriting copyright) and one in the recording of that composition (the sound recording copyright).

The revenue streams generated from the songwriting copyright include performance royalties (from radio play, public performance of the song, etc.), mechanical license royalties (a fee paid per-song for every copy of the song that is made), synchronization fees (if the composition is used in film or television), and more.

The revenue streams generated from the sound recording copyright include record sales (both digital and physical), streaming royalties, master use license fees (to use the actual recording of the song in film and television), and more.

Co-writer Rights

If you are a co-writer of the composition that was recorded, you are entitled to a percentage of revenues generated from the songwriting copyright. Some drummers are considered songwriters, some aren’t. Some guitar players are considered songwriters, some aren’t. It really depends on the agreement you have with your bandmates, and the extent of your contribution to the song in question. If you are indeed a co-writer, the other writers cannot exploit the recording containing the composition without your written consent.

For example, if David Lee Roth co-wrote Hot For Teacher, he could stop the other members of Van Halen from using that composition once he left the band. However, this principle does not apply if a publishing agreement was signed, as these rights would be assigned to a publisher (which they were in this instance). But if your indie band has not signed a pub deal, the principle applies: one writer can stop the other writers from using a co-written song, unless something is put down in writing between them.

Rights - DLR

If you are not considered a co-writer of the composition, you still have certain rights in your performance on the recording. Absent an agreement to the contrary, you own your performance on the master recording, and it cannot be exploited without your consent. In other words, even if David Lee Roth didn’t co-write Hot For Teacher, he could still stop his ex-bandmates from exploiting the recording of that song. However, this principle does not apply if a record deal was signed that gives these rights to a record label (again, one was in this instance).

But for indie bands without a record label, the principle applies: without something in writing between the members (a Band Agreement), any single member can stop the others from exploiting recordings that contain their performances.

This comes as a surprise to many of my clients, and is why the Band Agreement is so important. If you record your masterpiece and three months later your bass player quits, he or she could stop you from releasing your masterpiece. As we all know from reading rock and roll bios, bands don’t always stay happy and together (just ask Hagar…or anyone else that sang for Van Halen).

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The Modern Musicians Rights

So what does this mean for you, the modern musician? Well, without a Band Agreement that outlines the various rights and responsibilities of each member vis-a-vis the compositions and sound recordings, any one member can stop the others from exploiting the songs.

My advice: sign a Band Agreement that deals with these issues and clarifies the rights of each member. If no Band Agreement exists and you’re having a dispute with a current or former member, you have the choice of discussing it with them or discussing it through lawyers. One option costs a lot more.

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Second Interview on Turkish National News!!

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Sometimes life is gloriously random. Turkish National News has chosen the Led Zeppelin plagiarism case as one of the top entertainment stories of 2016, and just interviewed me as part of their year-in-review program!! The year-end special will air every 4 hours on December 4th, and be seen by several million viewers. I’m getting quite the following in Istanbul…