As when getting advice from people in authority, sometimes it’s worth getting a second opinion. So as well as having great advice for you from Elliot Chalmers of IMLA (Independent Music Law Advice) I also contacted Martine Alan another Music Lawyer to give her expert opinion on the subject of Music Law.
Martine Alan decided to become a Music Lawyer from the age of 17 after reading a book about the music industry. After gaining her degree in Law and further legal training, Martine began working for a music law firm in 1994 and hasn’t looked back ever since. Her resume includes working for independent music publisher Zomba and EMI publishing before setting up her own firm as a sole practitioner in 2008. Primarily representing developing artists, producers and songwriters as well as managers, small labels and publishers. Martine’s clients benefit from her 20 years experience as a lawyer in the music industry, whose services include Advice and Guidance with the crucial role of negotiating all types of music contracts on their behalf.
Musicvein: How can musicians protect their music especially with the internet and illegal downloads?
MA: Of course, the more people who have access to the tracks, the more the risks increase. The labels now have shorter lead times for releases given the chances of leaks and are very cautious about the links of unreleased tracks being circulate. For an unsigned musician I am finding they are similarly cautious about circulating links to only those whom they trust but I should stress that musicians really should be thinking of security in all aspects here, say, for example, sending private Soundcloud links which are not able to be downloaded from. At the end of the day a musician’s songs are very important so entrusting them into the possession of another should not be done lightly. It is not just leaks or illegal downloading but infringing samples could also be included into that material by the person you are trusting your songs with.
During the initial process of recording in a studio or sending files to a producer/mixer/remixer, certainly where the musician is the artist, the musician should be ensuring that at the end of the process they will be getting physical ownership of the files and any copies or other material which is needed for release. Ideally this should be backed up by paperwork clearly stating that this is the case and if there are any conditions to this e.g. payment, then being clear as to what these conditions are.
Musicvein: What can musicians do if they find someone using their songs without permission?
MA: In terms of illegal downloads, I don’t want to sound too negative but it is very difficult at this point in time to stop this. This is more the case for those musicians who are unsigned and who do not therefore have the weight and deeper pockets of a label or publisher behind them, with which to deter infringers. The copyright in the recordings or compositions will typically be transferred to a label and publisher and, as they are then the copyright owners, they are more inclined to take necessary action to protect their copyrights.
Generally where permission is needed and has not been granted for use of the songs, the first approach should be to the person/company using them and informing them that no permission has been granted. However the situation depends on whether the original recordings are being used or a cover or arrangement has been made and whether the musician has written the songs also. Where permission should have been given by the musician, the person/company distributing the material should also be contacted informing them that no permission has been granted. Although an unsigned artist can engage a lawyer to do anything from writing letters before action to undertaking full enforcement proceedings, this is costly and enforcement is still difficult and in reality the infringer is more likely to be scared off by these tactics. If they come from an established artist, whom the infringer knows has deep pockets to fight this or a label or publisher who does. Practically as sites containing infringing material will commonly have signed, in addition to unsigned, musicians’ work, it may be worth approaching the BPU/RIAA (for the recordings side in the UK and USA respectively) and the MCPS–PRS/Harry Fox (for the publishing musical compositions side in the UK and USA respectively) to let them know about these sites and ask if they will go after or shut down these sites, as the copyrights of many of their members are also being infringed. Personally I think that, unless a musician wishes to take a costly litigious route or has a label or publisher behind them, they should concentrate on the postive ways in which their own releases can make money or the upside of the unpermitted use, for example, where someone listening to those tracks will then come to a gig and buy authorised releases. A label or publisher may come along in time and, if the issue is still a problem, may well be happy to get involved at that point, if this remains an issue.
Musicvein: What permission is needed to publicly sing another artists songs?
MA: I should add that this is UK law but if you are covering someone else’s songs then basically, provided it is a cover, no permission need be sought. The publishing income i.e. PRS income from that gig would be paid to the original writer or their publisher. In terms of arrangements and adaptations, then you need to obtain the consent of the writer of the original or their publisher as you are essentially changing their copyright, for which you need their permission. In practice, a musician may just want to do their own slant on one of their favourite songs at a local gig and presumably the chances are slim of a high powered party connected to the original actually being in the audience. However in terms of recordings, a musician should definitely be getting it cleared, if it is not a straight cover.
Musicvein: What key things should musicians be aware of with contracts?
MA: I will be the first to say contracts are written in legalease, which is a different language from everyday English. Experienced and specialist music lawyers are trained in this different language and we know that even changing a letter or, certainly, a word can alter the whole meaning of that sentence or paragraph. That said however, I would say to musicians that they need to think about what they are expecting from this deal in terms of everyday English. For example, how much are you expecting to be paid for this and what are you giving up for this; when your manager told you, he or she wanted your contract to be for 3 years, then why does it clearly refer to 5? The main commercial points are generally the length of the deal, what the payments are and how they are calculated, what the territory is and what services or rights are to be granted under this contract. The fact that I know my way around music contracts is why my clients instruct me to represent them on the contracts that are presented to them and to advise them of their meaning in everyday English. Therefore I would naturally always recommend musicians obtain advice from an experienced and specialist music lawyer.
Musicvein: At what point would a musician need to hire a Music Lawyer?
MA: I think this varies. My view is that ideally this should be before a contract is presented to a musician. I will always be honest with musicians, managers, labels or publishers who contact me. If I don’t think they really need a lawyer yet, say, for example in the case of an artist before finding a good manager to build up their profile, although even then I have often been appointed before an artist’s manager has been found. For many of my clients I am proud to be part of their team and a member of that team they can rely on; a strong team is such a great advantage in this difficult market. Most music lawyers, including me, are happy to have that initial chat for free.
Next week we hear from Radio presenter Helen Mayhew about Radio Airplay