Who Owns the Song? Part I: Intellectual Property and the Musician

[Janie Gust]

Who Owns the Song? Part I: Intellectual Property and the Musician

 

The more I hang out with professional musicians, the more I see how challenging it is for them to implement intellectual property principles in the course of their art.  If they don’t think it is important initially, usually a hard-learned lesson teaches them that their intellectual property can be worth more than that instrument they haul to their gigs. Nothing I am going to say here is or should be considered legal advice but I would like to introduce you to a few general concepts. If you need more information, I leave you to your own devices which should probably involve some research and a good music or entertainment lawyer whom you know and trust.

What is intellectual property?  Intellectual property is a vast field of law which includes patents, copyrights and trademarks.  Everyone has heard of someone getting a patent on an invention or getting a trademark for a popular slogan.  Patent law is very specialized.  There is even a special exam that attorneys must pass to become a patent attorney.  Most of these lawyers have a science or technical background.  So unless you are a musician with a new invention, patent law will likely not pertain to you.  By far, the category that most often affects musicians is the area of copyright law.  Intellectual property is federal jurisdiction in nature and governed by federal statutes.  Most copyright law is contained in the Copyright Act of 1976 which was enacted in 1978 and has been amended thereafter.   If something is covered under the Act, it usurps any state law on the same subject.  State law prevails in matters not covered or addressed under federal law.

 

Although there is no special bar for music lawyers, if I were a professional musician, I would want someone who knows something about music and/or the music environment that I rolled in to represent me.  In fact, many music lawyers are often musicians themselves.  I read somewhere that when an artist chooses a music lawyer they should choose someone who really believes in them and appreciates their music.  I don’t think that’s a bad idea.  I realize that many lawyers may believe in an artist simply because they think he or she is or can become a cash cow but if you are a hip-hop artist and your lawyer has a serious (albeit unspoken) disdain for hip-hop music and culture there might be communication troubles down the road.   Same goes for jazz and other genres.

 

And let’s face it--most musicians themselves would agree that they are a very unique group of people.  After all, they are artists. There are lots of sensitivities involved in working with musicians.  One interesting thing I have found is that although many artists are aware of basic contract or copyright principles there are other factors involved that affect their willingness to utilize them—and you can’t discount these factors.  For example, many relationships are built by handshake or oral agreements.  For trust reasons, some artists are reluctant to pull out a contract for a gig or a session release form and ask a fellow artist to “sign here.”   Whether to be formal or informal is a judgment call for the artist to make depending upon the transaction, event, and parties involved---just as long as they understand and balance the risks involved.

 

I recently got back into private practice after years of doing contract work for large law firms and before that public interest law. I can tell you that I don’t even recognize private law practice as it existed back in the day.  Before, I didn’t have a website.  I had a yellow pages rep that put a nice pretty display ad in the phone book and the calls would come rolling in.  I had relationships with other attorneys and we shared office space and referrals in buildings either owned by one of us or where one of us was the main tenant in a nice flexible lease with lots of square footage.  That is all gone now. It’s strange because it’s not like I was on Mars all this time.  I even fully embraced many of the changes.  I was all over the internet when it first became available.  But somewhere we attorneys evolved from simply buying legal software and using word processing programs to needing a firm website and a blog to stay competitive.  And all sorts of other things I could never have envisioned before.

 

I am willing to bet that a musician or singer feels the same way I do if they have been away from the music scene for a while.  Things have changed drastically over the last decade.  Live performance gigs are still around but venues have decreased.  Gone are the days of even hoping that some record company will sign you and take care of your needs.  They are in trouble themselves.  The vinyl market is gone and CD sales are in decline, in part due to the ever-increasing popularity of digital streaming and downloads.  Some music buyers balk at buying an entire work by one artist and say they only want a track or two anyhow.  The rationale goes something like that old saying:  Why buy the cow when you can get the milk for free–or at least a reduced cost?  Add to that, we are currently in the greatest recession of our lifetime.

 

Musicians understand that touring is costly and while it can be enjoyable and often serves a promotional purpose, can you really depend on it forever?  I suppose you can try, but the results often are not very pretty with aging and ill performers who sometimes die or become incapacitated while on the road or even on stage.

 

So how can a musician maximize his or her income?  One word: licensing. Which brings us back to copyright law.

Next:  Copyright 101