Band Q&A

The Thin Dimes

Q: When I play a cover song at a bar that doesn’t have the proper licensing for the song, can someone try to get money from me for playing his or her song?
A: Although songwriters and their publishers cannot stop musicians from covering their songs, they do have the right to compensation. Performance licenses are needed, with narrow exceptions, whenever music is publicly performed — whether the venue is a bar, a street festival or a concert hall. Generally, it is the venue’s obligation to secure the appropriate live perfromance licenses, which are obtained from ASCAP, BMI and SESAC. Songwriters and publishers are then paid royalties based on how often their songs are played. In the future, you may want to find out if the venue has the correct license and refrain from cover songs if it does not. But you should know that the performing arts organizations say that responsibiity for proper licensing cannot be passed on to performers. (Claire Flores)

Belligerent

Q: I created a single member LLC for “Belligerent,” my rapping moniker. As sole proprietor for federal tax purposes, can I be penalized for using funds from my business account for personal finances? Also, can I be penalized if my LLC doesn’t make a certain amount?
A: A single member LLC that has not been designated as a “corporation” functions in the same way as a sole proprietorship for taxation purposes. This means that the single member of the LLC needs to pay taxes, not the “business.” As a single member of the LLC, you’re responsible for reporting all profits (or losses) of the LLC on Schedule C, which is submitted with your 1040 tax form. Even if you leave profits in the company's bank account at the end of the year, you must pay income tax on that money. There is no penalty for making less than a certain amount or reporting a loss. Be aware that co-mingling business and personal funds is a very bad idea because the principle behind liability protection is that the LLC is a legal entity, separate and apart from the individual owner(s). To keep your “corporate veil” in tact, maintain a separate bank account, use a business credit card for the LLC and keep track of your business income and expenses. Otherwise, a court may find that although you claim to be operating your business as an LLC, in reality you’re operating as if you are a sole proprietor. (Craig Richards)

Outcome of Betrayal

Q: What is the importance of consulting with a lawyer?
A: Consulting a lawyer can avoid ugly misunderstandings. The legal world can be confusing and frustrating, so VLAA recommends seeing a lawyer who can spot potential legal problems before they happen. For example, a musician may be particularly excited about signing his or her first management contract (see HeavyArms below). But what if the manager doesn’t do what is expected? A quick consultation with a lawyer can ensure that the management contract has provisions that will protect the artist. If you live in Southwestern Illinois or Eastern Missouri and would like a referral to a lawyer, please complete a VLAA application form. (Christen Smith)

The Tender Tribe

Q: My band wants to create a website with images and links to our songs and YouTube videos. What should I know about websites and copyright issues?
A: You recorded a song, made a video, uploaded it to YouTube, and now you want to post a link to the video on your band’s website — sounds great. Everything should be just fine. But there are a few potholes to avoid. After all, copyright infringement can mean getting sued and paying monetary damages (forking over a lot of cash). Here are three things you can do to steer clear of a lawsuit. First, only upload things you create, and that means everything. Ownership of a copyright is established as soon as you have created copyrightable content. If you shot the video or took the picture, there is no problem — post away. If you did not create the content, then simply ask for permission to use the content. If the creators want money, pay them. (It is the same as getting paid for your own music.) Or, you may be allowed to use the content under the fair use doctrine, which is limited to things like criticism, news reports, teaching and research. So tread carefully! Second, do not tamper with the link or the “guts” of YouTube. Finally, while you still own the copyright to your content, be aware that by uploading it, you are granting YouTube a royalty-free license. This gives YouTube the right to play all or part of your video anywhere, any time, for any reason, in connection with its service — for free.  Read YouTube's terms of service (Alex Hammond)

Mixed Nuts

Q: How will joining a performing rights society help us protect our music?
A: Policing your own copyright is a tremendous undertaking. Performing rights societies (ASCAP, BMI and SESAC) have the resources to ensure that public performance rights are respected and that royalties are collected then paid to their member songwriters and music publishers. For more information, see Music Performing Rights, an excellent article published by our friends at Philadelphia Lawyers for the Arts. (George Bailey)

The Ghost Monkeys

Q: If we record an album or an original song, do we have to file for trademark registration for our band’s name?
A: Fortunately, recorded music is protected by copyright whether or not your band has a registered trademark. Your band doesn’t even need to register for copyright protection to kick in — you acquire the legal right to prevent others from copying or distributing your original songs once they have been recorded (“fixed in a tangible medium of expression.”). That’s not to say that there aren’t big advantages to copyright and trademark registration. Without registering for copyright, a relatively easy process, you can’t file an infringement suit. And timely registration grants additional rights and benefits, if you do go to court. Trademarking your band’s name is more expensive and complex process. But the federal registration may be worth the effort because you don't want anyone else to be able to use your name. Likewise, you don’t want to invest time and money in your band’s name if someone else already owns it. (George Bailey)

Aaah! Real Monsters

Q: What is the easiest and most inexpensive way to get rights to our songs?
A: Some artists believe the easiest way to get protect their music is through “Poor Man’s Copyright.” The Poor Man’s method involves writing down or recording the music, sending it to yourself in the mail, then keeping the unopened, postmarked envelope as proof. The theory is that the postal service’s date on the envelope will serve as evidence. You may be surprised to learn that there is no provision in the copyright law regarding this type of protection. Copyright exists from the moment the work is created and fixed in a tangible form that it is perceptible, either directly or with the aid of a machine or device. Registration with the Library of Congress is not required but it provides a legal record of copyright ownership as well as additional legal benefits in cases of infringement. More about copyright (Michael Murphy)

The Kevin Mitchell 4

Q: If a band parodies a song, how can it avoid copyright infringement?
A: Parody is a tricky topic because it pits copyright law against free speech. We need to be able to protect the interest copyright owners have in preventing others from illicit copying while allowing all citizens the right to criticize a work of art—a goal of parody—without fear of being dragged into court. There’s no easy way to balance these two interests. When they come head to head in a lawsuit, courts will weigh certain fair use factors to determine whose interests will prevail—that of the original author or that of the parodist? These factors include the purpose of the parody, the type of work being criticized, how much of the original work is copied, and the effect of the parody on demand for the original work. To best weigh these factors in their favor, parodists should make sure that they really are criticizing or making fun of the original work instead of using the original to comment on something completely unrelated to it. And although it’s often necessary in effective parody to borrow a lot from the original, it’s safest to use only what you need to invoke the original in your audience’s minds and to make your criticism funny. (George Bailey)

Heavy Arms

Q: What are the key elements musicians should look for in a management contract?
A: Before you sign a management contract, it’s important to carefully review and consider the terms. One of the more important terms is how long you want the manager to work for you. Bands may want to start off with a one-year agreement. If you’re happy with the manager’s work, you can always add in an option to renew the contract at the end of the year. It may also be wise to outline the manager’s duties so there is no confusion over what the manager can or cannot do. Some of the manager’s duties might include providing advice, being available at reasonable times and places to meet with the band and overseeing merch. Money is also important. Will the manager’s commission be 10 percent? Twenty percent? And from which income sources will the percentage will be calculated? Finally, please don’t sign an agreement without consulting with a lawyer who is working on your behalf. Get help. (Christen Smith)

Mary & The Giant

Q: Our band name came from a novel by Philip K. Dick. We tried to contact the Dick estate, but we were unsuccessful. Is there any way for Mary & The Giant to ensure that our band name is protected?

A: Trademark, not copyright law (as often assumed), protects names. A trademark is a word, symbol, phrase, or design that identifies and distinguishes one set of goods or services from another. Trademark law is intended to avoid consumer confusion and to protect the trademark owner’s investment and reputation. A band name may be protected under common law even though it is not registered with the U.S. Patent and Trademark Office. The extent of this protection depends on whether the name has been used commercially, such as through CD sales, merchandise, gigs and advertising, and protection will be limited to the geographic region where the band name has been used. If your band wants protection on the Internet and across the country, you should consider federal registration. Conducting a complete search before filing an application is very important because the results may identify potential problems, such as a likelihood of confusion with a prior registered mark. Greater latitude is given when the proposed trademark is for a good or service in an unrelated field. The trademark search and application process can be tricky, so seeking legal assistance is highly recommended. (Craig Richards)

Elsinore

  

Q: Does adapting source material that Roy Lichtenstein also adapted infringe on the Pop artist's copyright?
A: For its album “Yes, Yes, Yes,” which was released in 2010, the Champaign-Urbana band Elsinore used artwork created in a college art class by Brittany Pyle, a friend of the band. Her artwork was inspired by the same comic (above center) that Roy Lichtenstein appropriated for his silkscreen print, Kiss V in 1964 (above right). Just before the album’s release date, Elsinore received a “cease and desist” note from Lichtenstein’s estate. The band turned to the blogosphere and, lo and behold, the Pop artist's estate had a change of heart and retracted the notice. Oh, and along the way, Elsinore got some free publicity. But the band's good fortune doesn't answer the pesky questions surrounding the copyright in the original work. So, to avoid legal hassles, we recommend consulting an attorney before you send your CD to the duplication service. (Margaret Gibson)

Ian Miller

Q: To what extent can you photocopy sheet music that you have purchased?
A: That’s a good question because, although you would expect to be able to simply copy the sheet music that you have purchased, there are very strict rules regarding copying.  While you are allowed to make an emergency copy for an imminent performance, there is no provision for making even private, personal copies of sheet music. In short, it's against the law, other than in very specific circumstances, to make unauthorized copies of copyrighted materials. And copying could result in substantial fines. However,  when sheet music is in the public domain, you can freely copy, record, remix and perform it. To find out if a piece of music is in the public domain in the U.S., visit Public Domain Sherpa. The site also offers links to free sheet music.  For more information on all of the ins and outs of sheet music and copyright, check out the Music Publisher Association’s Copyright Resource Center. (Kevin Webb)

Someone Still Loves You Boris Yeltsin

Q: Can the family of Boris Yeltsin sue us for using his name?
A: This question falls under the “right of publicity” tort, which was designed to protect a person’s right to profit from his or her identity. In Missouri, a suit against the creator of the Spawn comic book series filed by former hockey player Tony Twist turned on whether or not the use of his name gave a commercial advantage to the comic book property. The other two elements considered by the courts are whether the name is used as a “symbol of the person’s identity,” meaning that it refers to the person, and that it is used without the person’s consent. Since the former and first president of Russia, Boris Yeltsin, has passed on, this is a question of whether his estate can sue for right of publicity. The right of publicity doesn’t automatically extend to a deceased person’s identity, and Missouri has not decided to extend it. However, several states do recognize a right of publicity for deceased “celebrities,” so where you are using the name may make a difference – something to consider if your band receives national recognition. Of course, the family could have registered a trademark in Boris Yeltsin’s name. If there is a trademark registered, the family could sue, so you may want to conduct a trademark search. (Kevin Webb)

Lyfestile

Q: Why should I have a lawyer to review my recording contract?
A: Hiring an attorney may put a dent in your budget, and finding the right entertainment lawyer may take time. But when it comes to signing agreements, those are justifiable costs. A recording contract is an important document involving the allocation of rights of production and distribution of the music, royalty rates, and copyright ownership, as well as other pertinent issues that may affect your right to use or license your work. Signing a contract with a label is a big step – you can’t just walk away if things go sour. You should understand everything covered in the agreement. A lawyer will explain the terms in the contract and will highlight potential problems, such as a cross-collateralization requirement or an ambiguous termination clause. Don’t be afraid to turn to an expert in this area and ask questions, especially if it’s your first recording contract. If you live in Missouri or southwest Illinois, you can to ask VLAA for a referral to an attorney. (Yuran Ye)

Pik'n Lik'n

Q: Will forming a limited liability company (LLC) lower my tax liability?
A: No, but forming an LLC offers flexibility when it comes to filing your tax return. The IRS allows LLC member(s) to elect to be taxed as a sole proprietor, partnership, S corporation, or C corporation by filing the Entity Classification form 8832. If a taxpayer does not file form 8832, the LLC will be taxed at the default position. For an LLC with two or more members, the default would be a partnership (requires form 1065). For a LLC with only one member, the LLC default would be a disregarded entity, which is taxed as a sole proprietor for income tax purposes. Generally, LLC members do not choose to be taxed as a C corporation because of double taxation; the C corporation is not a flow-through entity. If an LLC is taxed as an S corporation (if certain conditions apply) or a partnership, the income or loss flows through to each member's 1040 return via Schedule K-1. This avoids the double taxation of the C corporate tax structure and often allows owners to keep more profits. An LLC's losses can offset a member's taxable income in the current year. There are some limitations, though, so please check with an accountant. (Kelly Wenell)

Medical Tourists

Q: Do I need to worry about any explicit content of lyrics in my music?
A: When including explicit content, consider your target audience because standards tend to vary. If you are lucky enough to have your songs played over the air, the Federal Communications Commission (FCC) prohibits profanity between the hours of 6 a.m. and 10 p.m. The Recording Industry Association of America’s Parental Advisory Label Program, which helps parents make the choice about when – and whether – their children should be allowed to listen to a particular recording, sets content guidelines addressing strong language and depictions of violence, sex, or substance abuse. Some stores, most notably Walmart, the world’s largest music retailer, have their own guidelines, so musicians and record companies often agree to create special “sanitized” versions of their CDs. At many venues, anything goes. But if you’re going raunchy, it may be a good idea to ask what is off limits. (Kevin Webb)

Reverend Matt

Q: What does writing songs with someone do to your ownership? Does "word to the third" apply?
A: Writing songs with others involves joint works and co-ownership. To establish co-ownership in a song, each writer must have the intent to be a co-author and must contribute to the work. The contribution should be copyrightable under the Copyright Act and more than a “de minimis” or insignificant contribution. Each of the authors of the song has an undivided right in the entire work, and each is free to use or license the work without the knowledge or consent of the other co-owners, provided that the use does not amount to a destruction of the work. When any of the co-owners of a copyright licenses the work, he or she must account to the other co-owners for their share of the profits. “Word for a third” is a way to divide profits among co-songwriters. It means that even if a songwriter or performer only contributes a small amount to a song, he will still get a third of the songwriting rights, assuming there were two other writers involved. Remember, you can, and should, agree in advance to specific copyright or royalty divisions. And please put the agreement in writing. (Yuran Ye)

Junior Smalls and the Criminals

Q: If a band has been using a name for several years, does the band have to formally register the name in order to prevent another local band from obtaining rights to it?
A. No. A band can establish trademark rights in a name simply by using the name. The band's name will be protected where the band works. If a band plays concerts regularly in St. Louis, then a band's name may be protected from infringement by any other St. Louis band. However, it is difficult to establish priority to a name based solely on use, especially for services with a less than consistent presence like a band. To avoid potential disputes, bands should consider registration with the federal trademark office. The filing process is best accomplished with the assistance of an attorney. Registering provides several advantages including notice to the public that the name belongs to the band and a legal presumption of the registrant's ownership of the mark in the state or nation. Any time you claim rights in a mark, you may use the (TM) registered trademark designation to alert the public to your claim, regardless of whether you have filed an application. You may only use (R) registered mark designation for a federally registered trademark. (Kelly Wenell)

Bob Case

Q: If I write a song to the melody of "Down by the Riverside" how do I get a copyright?
A: "Down by the Riverside" is a traditional gospel song that dates back to the Civil War. Because the song is in the public domain, you can use the melody in your song. (Determining whether or not a work is in the public domain in the U.S. and abroad can be tricky. Try searching PD INFO, or better yet, consult an attorney.) When borrowing a melody from another song, your work will be a derivative work— a work based on one or more preexisting works, consisting of editorial revisions, elaborations or other modifications that, as a whole, represent an original work of authorship. The copyright in your song will be independent from the underlying work and the copyright protection will extend only to what you created, namely the parts other than the borrowed melody. For more information, see VLAA's Guide to Copyright Basics. If a song is not in the public domain, you should seek permission from the publisher or writer before preparing a derivative work. Likewise, you should obtain a mechanical license, probably from the Harry Fox Agency, before making a recording. (Yuran Ye)

Wendell B

Q. Is a distribution company allowed to hold more than $5,000 for CD returns at one time?
A. Yes, if it's allowed in the contract. Contract formation begins when one party makes an offer to indicate his willingness to enter into an agreement with certain terms. The contract is formed when the other party accepts. The agreement must include valid consideration. That is, both parties must contribute something to the agreement such as money, labor, a return promise, etc. Depending on the wording in the contract, the distribution company may or may not be allowed to hold more than $5,000. If there is a breach of the contract, then legal action could be taken. To avoid problems, musicians should talk with an entertainment lawyer before signing  contracts. The lawyer can give advice on whether clauses are customary and can explain unfamiliar terminology. (Kelly Wenell)

The Union Electric

(photo: Jess Luther)

Q: Having registered songs with ASCAP and received air play on college and community radio throughout the country, what steps can a songwriter take to claim the royalties owed to them if ASCAP is not sending a check or reports?
A: ASCAP divides the year into three-month periods, and payments are made approximately six to seven months after the end of each period. It is natural that you may have to wait for months to begin receiving royalties. Royalty calculations are also somewhat complex and depend on the type of licensee and the amount of fees collected from the licensee, among other factors. Radio stations subject to lower licensing fees may be sampled less frequently when determining performance numbers, meaning songs played only through non-mainstream outlets may show small totals. In addition, ASCAP has adopted a policy to only mail a statement for payments due of $100 or more. To check your statements, you may access your account online. After a reasonable period, and if you are still concerned you are entitled to royalties, you should call or email ASCAP’s member services department. Keep in mind that there are deadlines for making claims — for writers, nine months after the particular distribution period, and for publishers — December 31. (Yuran Ye)

3rd Degree

Q: Can we get compensated when a gig gets rained out because we could have booked another, possibly more profitable, venue?
A: A rained-out gig can be a messy situation, and not just because of the puddles. Without a well-planned contract, a lot of finger-pointing can come up, and good business relationships can sour quickly. This is why you should ask a lawyer to advise you on contract clauses and terms. The terms in the contract will determine how "what if" situations are resolved, so make sure that you address potential problems and are satisfied with the agreement. It is possible to ask for a deposit ahead of time, and write into the contract what will happen if the show gets cancelled due to weather, which will ensure that you are compensated for that day that you set aside. Check out VLAA’s sample performance agreement, which should be tailored to meet your needs. (Kevin Webb)

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