A music lawyer shares 3 things every musician needs to know

Entertainment lawyer Ben McLane sits with Bobby Borg to discuss three important topics bands need to consider in the new music age.

by Bobby Borg from the Disc Makers Blog

As an author myself, I can tell you the key is not to read one or two books, but to dig deep and read everything out there when you’re trying to learn and understand something. Read as much as you possibly can — educate yourselves. I encourage you to read Ben McLane’s book, Music Business In Ten Easy Lessons, all the way through to get a perspective from a renowned entertainment lawyer. But for today, I’m going to ask Ben to summarize three things in his book, starting with band names.

Research your band name

Bobby Borg: A lot of people come up with a band name or an artist name and they’re concerned with protecting it, maybe trademarking it. What I’ve found in my experience is, a band will form, come up with a name, and then they find out later that there’s 14 other people with the same name and they’re all out there using it — even in the same geographic region. So, obviously, they didn’t do their research. What are some of the key tips you’d suggest?

Ben McLane: Number one, do a simple search online and see if anybody else is using the name in your category. If you’re a music act and there’s someone out there with your name selling donuts, that’s not a problem. You’re not in the same lane — the same trade channel. At the same time, if you find there’s even one conflict, especially another music artist, I’d advise coming up with another name because, if they pre pre-existed you, they really have the rights and they could stop you from using it. Not to mention the potential to cause consumer confusion.

A lot of people push back and say “how do I do that? There are so many bands out there, I can’t find a unique name. I don’t buy that.

Bobby Borg: Doing your research is really important. Otherwise, you could spend a lot of time and money branding yourself and then find out you have to stop. There’s no point in building equity in a name that you’re going to have to abandon.

Do you need a business manager?

Bobby Borg: Finding a manager is something a lot of bands feel they need to do, but they may end up in an arrangement or deal they don’t really understand. So, there are lots of practical questions regarding managers. Where do you find one? What can you expect from one? And then I find there’s a lot of confusion in the deals with post-term provisions and what a manager can commission. As an entertainment lawyer, what do you have to say about business managers in your in your book?

Ben McLane: As far as how you find one, most managers seem to find the artist. It’s very rare for an artist to chase down a manager. It seems like the manager comes to the artist and it’s usually through a personal recommendation or even through an entertainment lawyer. I might introduce a manager to an artist because it’s good to have a manager on your team — if they know what they’re doing.

A lot of times, managers are out there trolling the Internet trying to find what’s bubbling up. In fact, that’s how Scooter Braun found Justin Bieber: on the Internet. So that’s how a lot of people find each other. But once someone has reached out, there are things you need to care about, like how is the manager going to manage you?

And then there’s the length of the agreement. If you’re an artist, you want a shorter term — if you’re a manager, you want more years, especially if a manager is building an artist up from scratch, they want to be locked in for a while, which is only fair. The term of a deal could be anywhere from two to five years, on average, and then there’s the question of what is the manager going to get paid?

Is their commission 15 or 20 percent of what the artist makes? It could be more or less, but those are the kind of basic things you have to negotiate. And then there’s the post term. When that manager is not managing you any more, they may have helped you set up a business that you’re still profiting from, and they’ll want a piece of that. It’s called a sunset clause, where usually for a couple of years afterward, they’re still getting paid. Usually, the percentage goes down, but that’s all negotiable.

Do you need a band membership agreement?

Bobby Borg: Band membership agreements are something I know a bit about because I’ve been advanced my whole life. What are some of the problems you’ve found with band membership agreements or some of the areas you think are the most important to talk about?

Ben McLane: One of the biggest issues goes back to our first point, the name of the band. Is the band going to own that name, or is the member who formed the band going to own it? What happens if the band splits up or stops playing together — can anybody use that? Can only one person use it? Does it have to be by a vote?

You want to deal with that in the agreement, don’t presume anything. And then there’s splitting the money. And not just from songwriting, but from touring, from record sales, from merchandise. Is it equal or does one person get more than the others? The easiest way is to split everything equally, except for songwriting, because if somebody’s really not contributing any songwriting, it’s probably not right for them to get an equal share of the writing and authorship. Some bands split it evenly, regardless, which certainly keeps everybody happy — but but at some point … maybe not.

On the other end of that, if one person’s getting writing credit and making all the royalties, if there’s a hit, the person driving the Volkswagen is fairly jealous of the person living in Hollywood Hills and that causes dissension, so there’s no one simple answer, it’s case-by-case. But, I’ve heard bands like U2, for instance, I believe they just split everything equally, including the songwriting, and they’ve always done it that way. Maybe because they feel like, even though you’re not writing the lyric, you’re still playing on that record, you’re giving it the feel, you’re promoting it, you’re playing and performing it, giving it value, and we’re not going to stress about parsing the specific percentage of who did what.

Bobby Borg: Sometimes, I’ve seen this happen, where, in the beginning, 25 percent of zero is zero — it’s easy to split everything equally. But then as the band progresses and starts to make money, maybe that’s when people start wanting to be more specific about rewarding members for their contributions. It’s important to have good communication within the band, and things can always be changed — a band agreement can get altered as the band grows.

Want more music career advice? Don’t just read it… watch the videos on Bobby Borg’s YouTube channel.

Bobby Borg is the author of Music Marketing For The DIY Musician (Second Edition), Business Basics For Musicians (Second Edition), and The Five Star Music Makeover (published by Hal Leonard Books). Get these books at any fine online store in physical or digital format. Learn more at www.bobbyborg.com.