Entertainment Lawyers in the Courtroom

Lawyer Courthouse           My first job as a young associate was with a transactional entertainment law firm – we did not go to court.  When a client found himself or herself in a legal dispute our amazing boss would negotiate a compromise 99% of the time – at least that is the way it seemed to me.  In my two years at that firm we had one client actually go to court.  In that situation we engaged outside counsel on behalf of the client to file suit and I accompanied the litigator to the court.  As it turned out the other party did not show up and my client got a default judgment.  That is the extent of my litigation experience!

It is not an exaggeration to say that as a young lawyer I did not realize that entertainment attorneys go to court.  Seriously.  The firm I worked for made deals (primarily for artists) and drafted and negotiated the contracts supporting those deals.  It was not until I left that powerful law firm and struck out on my own that I realized that quite a few entertainment lawyers go to court.

When I am asked advice about becoming an entertainment lawyer I usually suggest, among other things, that the lawyer or law student to whom I am speaking consider not only deal making and transactional law as a career but to be open to accepting entertainment litigation cases. Doing so increases the options and possibly the income – especially in the early days of solo practice.

My friend, Sawnie “Trip” Aldredge is an excellent transactional entertainment lawyer as well as a litigator.  I asked Trip to be a guest blogger for me.  I am pleased to post what Trip has to say about being an entertainment law litigator and hope that this will be of some benefit to you.  Here is his post:

 

            “Daddy’s a litigator, those are the scariest kind of lawyer”—Cher in Clueless

            When I first started practicing law, my partner and I basically took any case that came in the door while we built our entertainment law practice.  So, while we were learning to negotiate record deals and publishing deals, we were also doing divorces, landlord-tenant cases and the occasional criminal misdemeanor case.  I had been in the legal clinic in law school and found that I had really enjoyed the whole courtroom experience – which actually surprised me.

            Gradually, other lawyers started referring music litigation cases to me.  At first, these usually involved representing defendants in no-win situations but over time the cases became better and more rewarding – from royalty disputes to management breakups and ultimately to copyright and intellectual property litigation.  As in every other aspect of the law you learn by studying what other people have done before and by actually doing the work.

            Having the ability to actually litigate cases has really helped my practice.  I believe that when you truly understand what goes into trying a case, whether from the plaintiff’s  side or defendant’s side, and when you have an understanding of how a court is  likely to handle a matter, it makes you a better advocate for your client.  As a litigator, I have developed a sense of when it is appropriate to file a lawsuit and when it makes sense to back off and try to negotiate a settlement of a dispute.

           There are some significant downsides to trying to be both a transactional lawyer and a litigator.  It does not happen often but sometimes companies don’t want to deal with me on a contractual matter because I have sued them in the past. I reconcile this by knowing that if I had to file suit against this company or this individual then I was zealously representing the interests of my client – and at the end of the day that is what we as lawyers are supposed to do.

           It is also sometimes difficult but not impossible to run a litigation practice as a solo attorney.  The big firms will always outnumber you when it comes to man power.   However I have had a number of mentors over the years who have shown me that one can indeed merge a litigation practice with a transactional entertainment law practice and I can tell you that I am rarely bored.

            In my opinion, the music business is becoming more adverse; that is more and more companies are turning to litigation to resolve their disputes, often involving matters of first impression.  I can sense that knowing what goes into trying a lawsuit will become increasingly important in years to come.

         Be sure to check out Trip Aldredge’s Music and Law Blog.   Thank you Trip.

Staying Current in Entertainment Law – Meet, Greet and Read

Hand Shake MenIn any area of the law the practitioner needs to become familiar with the laws, rules and regulations pertaining to the attorney’s specialty.  And the practitioner not only needs to be familiar with the law but also to keep up with recent cases and other developments in his chosen area or areas of focus.  The same is true in entertainment law.  But in entertainment law the attorney also needs to keep up with what is going on in the entertainment industry that might affect the deals and agreements he is responsible for reviewing, negotiating and with respect to which he is advising his clients.

Knowledge of the industry, who the key people are,  and current trends in contract deal points are important to the entertainment lawyer.  Ultimately the goal is to be connected and gain information over lunch or a drink with key executives and others in the industry (including other lawyers).  But for the new entertainment lawyer that may or may not be possible.

In Nashville it has been my experience that when a new entertainment attorney comes to town or enters the business they are generally welcomed by the establishment.  Music lawyers are frequently in a position to bring new and worthy artists to the labels, publishers, performing rights organizations and others in the business.  Plus when it comes time to negotiate deals with the lawyers it is good to have a relationship with them.  Nevertheless, it still takes a long time to develop the type of relationship that will yield the current information that this post is about – the trends and current deal information.

Another important source of information for the entertainment lawyer is . . . the entertainment lawyer.  In Nashville we have a very friendly entertainment law bar.  We phone or email each other when we need to ask a question about the current state of affairs or when we are seeking advice on a legal issue that we might not have faced before.  I share freely as do 90% of my colleagues here in Nashville.  Don’t forget to make friends and join the entertainment law sections of your state and local bar associations.

Another important way to stay current is to subscribe to and read industry and legal publications.  In Nashville it is important to subscribe to Music Row.  I subscribe to Music Row and to Billboard and to a number of other entertainment and entertainment law related publications, both digital and hard copy.  There are a number of online newsletters and publications that I monitor on a regular basis, including David Ross’ Secrets of the List.

If you are new to entertainment law you also should read all you can about the structure of the business.  For more on this point read my blog post entitled “Learn the Business–Not Just the Law”.

In summary, you cannot rest on your laurels in the music law business.  Things change and it is important to keep up and continue learning if you are going to be of ultimate service to your clients.  Fortunately, there are many resources.  I invite any other entertainment attorneys reading this to contribute by leaving your comments and suggestions.

Do New Entertainment Lawyers Need A Mentor?

mentor4I have often wondered how one can become a transactional entertainment lawyer without a mentor? The reason is there are no books that I know of that teach all that one needs to know about the negotiation of all the different kinds of contracts in the music and entertainment industries. I learned the traditional way. I got a job at a successful entertainment law firm. I was fortunate. This is the route that many but not all of my entertainment lawyer friends took. Some, on the other hand, networked and befriended experienced entertainment lawyers. And others read all they could about the business, went to entertainment law CLEs and subscribed to entertainment law form services–hopefully ones with good current commentary.

To the best of my knowledge most entertainment law courses in law schools are focused on reading and understanding the cases. A good idea for both transactional lawyers and litigators. Recently a law professor asked for a review copy of my book “Entertainment Law Mentor: Negotiating Exclusive Songwriting Agreements” because she was searching for a text for the negotiation class she was about to teach for the first time. Of course I sent her a review copy of the book but I also explained that my book was probably too narrow for an entire negotiation course text book, even though it would contain some information applicable to all types of contracts. My book might be a book to be used as a part of a class or supplementary reading. (I am currently writing book two in the series.)

When I graduated from law school I was hired as the Director of the Commercial Music and Recording Program at Georgia State University. I expanded the curriculum and included courses about recording and other music agreements. Since I had never practiced law most of my knowledge was based on being a law clerk for an entertainment lawyer while in school and whatever I could find to read. At that time the so-called “bible” of the music business was “This Business of Music” by attorneys Sidney Shemel and William Krasilovsky. I taught my undergraduate students all about recording agreements based on that book. After three years at GSU I went to work for one of the hottest entertainment law firms in the U.S.and there I found my mentors.

As far as the nuances of deal making and negotiation skills my mentor was the senior partner. And my mentor as far as the nitty gritty paragraph-by-paragraph, sentence-by-sentence, word-by-word negotiation of a contract was the senior associate. The big eye opener for me was that a lot of what I had been teaching was out of date–not wrong–just not current. That’s the trouble with books in the music industry. It is a very fluid industry and contract deal points change. The text book for my class was not at all current when it came to information such as appropriate royalty percentages, the way deals are structured, advances and so forth. I was teaching undergraduates who to the best of my knowledge did not have their sights set on law school and would have no reason to learn the real details of contract negotiation – at least not until law school or law practice.

The kinds of details that I speak of were no where to be read or learned other than from a mentor. A mentor that was currently engaged in the practice of entertainment law at a cutting edge level. In my series of books I am trying to give as much of that information as I can. However, my books are not designed primarily to give the major deal points (royalty percentages, etc.) as much as the myriad of other issues that are not as susceptible to change and can rarely be learned outside of mentoring. My advice to the lawyer venturing into entertainment law is to read everything you can about the subject, attend seminars, network with established entertainment lawyers and if at all possible find a mentor or consultant who can guide you in this exciting venture.

I know that other entertainment lawyers read my blog. I would love to hear your opinions on this subject.

Entertainment Law Practice – Don’t Ignore the Small Clients

Lawyer and ManOnce upon a time in Tennessee I got my first client that was paying me six figures in legal fees every year.  My firm consisted of me, an associate and an assistant.  I didn’t have a strong desire to get much larger – I like the solo and small firm life.  I proceeded to aggressively represent my number one client and along the way learned a few lessons.  One such lesson is undoubtedly common sense to many of you but apparently not to me.  Or perhaps I just forgot to slow down and think.

The first lesson I learned was to approach my practice with this in mind:  Everything Changes.  Isn’t that a law of nature itself?  But there are things that I can do to increase the chances of change being in a positive direction rather than negative.

I had some wonderful years with that big client and a respectful number of others.  However, what I did not foresee was that the client, a music business legend, would begin downsizing.  And as he divested himself of companies and stress causing activities, I too began to downsize — but not on purpose!  Eventually the annual fees paid to me by that client leveled off at about twenty percent of what they had been at the highest.

I remember setting in my office one day and thinking that I didn’t have much to do.  And there was a lot less money left at the end of the month.  My associate was handling the bulk of the work and my main job had become reviewing and revising his work.  I was discussing the situation with an advisor.  I have never forgotten what told me.  He said that I had been focusing totally on the needs of the large client and had ignored the smaller clients.  Then when the large client fees dwindled I did not have a good stable of other clients keeping the business healthy.  He spoke as though I was not the first to stumble into this trap.  This all immediately made sense to me.  I did not need convincing.

I took action. I no longer needed an associate.  I let him go.  I also no longer needed a full-time assistant, a luxury for most solos.  I let her go and hired a part-time assistant.  I began to pay attention to all clients big or small.

Today my business is healthier than it has ever been.  If I don’t believe I can give a prospect the needed attention and service then I do not accept them as a client. I have large and small clients.  My assistant is still part-time.  I engage independent contractor attorneys to assist with the work load on an as-needed basis.

Again – the lesson:  I remember when things are going well that everything changes.  However, the change can be for the better if I pay attention to all aspects of my business.  And take care of all my clients – large or small.

Does Your Client Need To Know What They Are Signing?

lawyer-client meetingEntertainment Law clients come in all types just like other people. Most of my clients turn over contract negotiations totally to me. That is fine. That is what I do and it is not what they do. However, I do appreciate the client’s input and opinions on key issues, especially those that are proving to be troublesome in a particular negotiation.

Some clients are readily available when I want to explain what is going on in a negotiation and are willing to express their opinions on the issues. And some are not. I appreciate getting the perspective of the client on difficult negotiation issues. It helps me learn what the client values in the deal (which might not be what I assumed was most important to them). My business clients often are especially helpful by letting me know what is most important to them from a business perspective.

Even if a client declines to take my advice on a particular matter I appreciate being given the opportunity to explain why their decision could lead to adverse consequences in the future. Then if they are understand the possible negative outcome of their decision, and are willing to take that risk, I feel that I have done my job and am able to close the matter – both in the office and in my head.

On the other hand, there are the clients who not only turn everything over to me but who really do not want to know anything about contract matters other than major deal points, such as royalty rates and advances. Not long ago I negotiated a long-term exclusive recording contract for a successful artist. After prolonged and difficult negotiations were complete, it was time to explain the contract to my client and have them sign. I was told by the manager that the artist said “If Steve says it is ok I’m sure it is. Just let me sign it.”

Successful creatives are very busy. And many find business and legal matters distasteful and distracting. I get that. However, I really do not want the total responsibility of making major decisions for my clients — decisions that may affect their lives for years to come.

At a minimum I recommend having a meeting with the client to explain to them what they are about to sign. It doesn’t have to be a lenghty meeting. Just long enough to make sure the client has been told the highlights of the contract. Then they can sign. I usually am able to accomplish this by insisting that the client meet with me to sign a contract. Then I have the opportunity to point out any key elements of the commitment they are about to make.

I know some entertainment lawyers who are perfectly ok with taking total control of the legal matters for their clients and allowing them to blindly sign what the lawyer says is ready for execution. If you are one of those lawyers I welcome your comments. Or if you haven’t had to deal with this yet I also would like to know your opinion.