I knew Isaac Hayes. Not well, but enough to be on a first name basis. Not well, but enough to admire and like the soft-spoken music icon as a genuine person. I grew up in Memphis, Tennessee and was strongly influenced by Memphis music, including Isaac's home label, the famed Stax Records. In fact, my style of guitar playing was heavily influenced by Stax's Steve Cropper and my bands always were dubbed "blue-eyed soul" groups. I first remember seeing Isaac in his songwriting office at Stax when my own band was doing some recording for the label. Songwriters were my heroes and high among them were Hayes & Porter who wrote many of the Stax hits, including "Soul Man". At that time I didn't know Isaac could sing. But he was already my hero as a songwriter. It wasn't until I moved to Atlanta in the late 1970's and became an active member of NARAS in that city that I got to know Isaac (who had also moved to the area) much better. He was always a kind gentleman. He passed away this past Sunday at his home after suffering a stroke. Thank you, Isaac, for your inspiration, your kindness and your tremendous influence on the music I loved and performed as a young man.
NSAI - The Nashville Songwriter's Friend
in NSAI, Songwriting
Last week I was interviewed for a 20 minute video which will be a part of the Nashville Songwriters Association International (NSAI) Pro-Writer Video Series. The "host" of the video series is always enthusiastic National Membership Director, Sheree Spoltore'. My plans are to put a copy of the Video on my website in the near future. At least weekly I suggest to beginning songwriters that they become members of NSAI. The organization offers opportunities to network and to learn and polish the songwriting craft. Not insignificantly, NSAI is one of the primary organizations that lobbies in Washington for legislation protecting the rights of creators -- particularly songwriters. Check them out at their website. And if you are an aspiring songwriter, a professional songwriter--or somewhere in between--definitely consider becoming a member of NSAI.
Being a Solo Entertainment Lawyer - Guest Blogger
in Law practice
When Susan Cartier Liebel asked me to write as a guest blogger at her How To Build A Solo Practice, LLC blog, to say I was a bit intimidated is an understatement. Being relatively new to the bloggosphere I felt I had been given the opportunity to step into the "big time" for a day or so anyway! To publish at a blog that a lot of people read! Nevertheless, I procrastinated and was quite slow in writing the post because it was like writing an article on "How I breathe air". I mean -- I have been a solo for so long (25 years) that I don't often stop to think about how and why I do it. So Susan--I owe you one for causing me to have to stop and think about being a solo and the many blessings that brings to my life. For those interested in how I see it, please check out Susan's blog at How To Build A Solo Practice, LLC.
Recording Commitment: Opportunity or Obligation?
A university student recently asked me if Artists view the album Recording Commitment in their recording contracts as opportunities or obligations. To put this in context, most recording agreements today provide for a "Recording Commitment" which is linked to the Term of the Agreement. A simple example would be if the Agreement provides that the Term will be for an "Initial Period" of one year. However, the label will have options to extend the Term of the Agreement, year-by-year, for a specified number of years. EXAMPLE: A Term for an Initial Period of one year with the label having options to extend for five additional periods of one year each. The Recording Commitment might provide that the Artist will record one Album during each contract period. Thus, this Artist could possibly be required to record six albums for this label.
Back to the question: Do most Artists view the Recording Commitment as an opportunity or an obligation? A good lawyer answer is: "Both!" It depends, at least in part, on where the Artist is in his or her career. Most Artist's entering into their first recording agreement are going to be looking at this as an opportunity--not as an obligation. However, as the number of required albums increase, the more it might be viewed as an obligation. Since the options to extend the recording agreement belong to the label--not to the Artist--I think most Artist's would prefer that the deal be for a lesser number of albums. The thinking is that if the Artist is a "star" by album 3 or 4, he or she would like to be free to negotiate a better deal with the same or another label. (In reality the label will usually renegotiate the deal with the Artist once success is achieved even though they are not contractually obligated to do so.) Experienced entertainment attorneys understand the long term ramifications of the length of the Term of the Recording Agreement and will generally try to negotiate these provisions so that the Artist's Recording Commitment will be on the low end. The label, on the other hand, will argue that since they took the initial risk by investing substantially in an unproven Artist they should be entitled to benefit on the back-end after the Artist achieves success.
A final note: While major label deals for a new artist will typically be for 6 or 7 albums, the Term and Recording Commitment for a first time artist signing with an independent label varies widely.
Legal Fees
I've been thinking a lot about legal fees lately. Not how to get more of them -- but how to set fair fees that make sense to the client in terms of the value of the transaction that I am hired to participate in. I suppose this is on my mind in part because I have had two prospective clients take a step backward from employing me after I quoted fees.
The traditional method of attorney billing is hourly. The attorney keeps track of her time and bills the client based on total time spent. This is usually broken down to the tenth of an hour. I spend a lot of time clock watching when I bill this way -- mostly wondering if I am going over what is a reasonable fee for the project. Since I am a perfectionist and probably spend more time than the client would expect, I normally end up discounting my fees when I am billing by the hour. Usually the client doesn't know that I have done this.
Another way of billing legal work is to set fixed or "flat" fee for a project. This is by far my favorite method, but is a lot more difficult to do than hourly billing. When setting a flat fee I have to consider a lot of factors. Some are: (1) The amount of time I think the work will take. (2) The client's expectations. (3) The value of the deal I am working on for the client. (4) The client's budget for the project. (5) The client's ability to pay. (6) How much is the form I am beginning with worth? I have developed my forms for over 25 years. Honestly, what normally happens when I use flat fees is that I under estimate the time it will take. This is particularly true when I am called upon to negotiate deal points and the actualy agreement. Regardless of the negatives, I am commited to moving away from hourly billing and giving the client some certainty when it comes to legal fees.
Perhaps the better way is to present my fees as "unbundled packages". I have done this often. I try to break out the various steps involved in a particular legal representation, from start to finish, and assign a flat fee to each "unbundled" segment of the process. For example, representing a songwriter in a first time negotiation with a major publisher, some of the components might be: 1) Negotiation of major deal points and meetings with client re same 2) Review of first draft of agreement and discussions/meeting with client re same 3) Preparation of mark-up of first draft, first round negotiation and discussions with client and 4) Subsequent negotiations. I will price each of the forgoing stages separately. I will also give the option of one "all-in" flat fee which, if paid in advance, will be less expensive than purchasing the services in four phases.
I think the important thing for me and my clients is that I stay committed to the process of billing fairly in a manner that gives the client certainty of costs prior to engaging my services. If this is of interest to you, check out Chris Marston's blog.
The Long Tail Debate
Have you been reading at all about "The Long Tail"? This is the title of Chris Anderson's new book which basically espouses the idea that while traditional marketing outlets are limited by shelf space and thus only offer the consumer a relatively small number of "hits," websites such as iTunes, Rhapsody and Amazon.com can carry a much greater number of slower-selling items. These non-hits, which make up the "tail" of the title, can add up to a big number -- maybe even bigger than sales of the hits. Check out this article by Anderson for an excellent explanation of his theory. Then for for a good start on understanding the debate surrounding Anderson's theory be sure to read Lee Gomes' criticism of ideas espoused in "The Long Tail" and Anderson's blog rebuttal. Certainly the idea of increased sales of tracks by lesser known recording artists, including independents, is an attractive one. Perhaps an idea whose time is rapidly approaching--even if not quite here yet.
Giving the Artist the Right to Release Old CDs
This week's Billboard (May 17, 2005) reports that there is growing support for a compulsory license that would allow recording artists the right to self-release their master recordings if the record label that owns them has no plans to do so. More specifically, if the record label that owns the masters does not press and sell physical copies of them through normal retail channels in the U.S. for a period of two years (whether or not the recording has been commercially released and distributed in the past), then the recording artist who created the recording(s) would be able to apply for (and presumably obtain) a compulsory license to release the recordings himself or herself. The artist, of course, would be responsible for paying any third-party royalty recipients (e.g., AFM, publishers, etc.). Further, the artist will pay a license fee to the record company. This sounds like an idea whose time has come, although I expect that labels will resist this primarily because it will increase the workload of already overworked legal and licensing departments.
It's Their Fault!
Ok--time for a bit of a rant and rave. I look at wannabe songwriter and artist message boards frequently and occasionally post. My rant today is that so many of the writers and artists who don't have deals--or have had deals and not achieved sales success--always want to blame some person, place or thing other than themselves. When in fact it is probably just that negative finger pointing attitude that is their main problem to begin with. Today I read a post at a songwriting forum by a poster who insisted that you have to be an established insider and a writer-artist to have a chance at getting a song cut in Nashville. Here's my reply to that post--plus a little bit more:
Unestablished writers get signed all the time. Some make it and some don't. Here's one example that quickly comes to mind. I represent Kelley Lovelace. I represented him when he signed his FIRST writer deal with a major about 5 years ago. To the best of my knowledge he had had no cuts--certainly no hits. Being a songwriter was not his primary source of income at that time. So he was one of those unproven writers--not "established". Some of the hits he has written since then are "Didn't Have To Be" (Brad Paisley), "Girls Lie Too" (Terri Clark); "The Impossible" (Joe Nichols), "Two People Fell In Love" (Brad Paisley). There are more. Kelley was an unknown when he signed his first deal. But he had spent time learning his craft and networking. There are many, many more who get in the door and don't get signed because they don't have the talent--and/or the honed skills. Creativity and talent is not enough. Learning and perfecting the craft is critical. And by the way--Kelley is not an artist--neither are most of the writers I represent. One of these days I will see a post where a writer says something like "I can't get a hit because I'm not good enough yet!" instead of blaming the industry, or the color of the sky, or whatever.
That's my rant and rave for today!
Two-Second Sampling Infringes
Tuesday a federal court of appeals in Nashville ruled that sampling of two seconds from a sound recording constituted copyright infringement. The infringement was of the sound recording copyright--not the underlying musical composition.
According to an article in Billboard.biz yesterday (September 8, 2004) "a mere two-second unauthorized sample of a guitar solo from Funkadelic's 'Get Off Your Ass and Jam' is enough to constitute copyright infringement of the recording." Prior to this ruling it was widely accepted that in order for a use of a copyrighted work to be considered an infringement, the taking had to be "substantial". However, according to the Sixth Circuit Court of Appeals, in the case of Sound Recording copyrights, any taking, no matter how brief, is sufficient to constitute an infringement assuming all other elements of the case have been proven.