The Law One
Michael R. Gardner has been an attorney since '83 and a songwriter for as long as he can remember—"a gazillion years." After working with lawyers on songwriting contracts, he realized they usually didn't understand the contracts as well as he did. So why not go to law school? These days, he spends his days laying down the law and his nights laying down the grooves with his folk-percussion band, One Foot In. He had the following advice for Weeklyreaders in the throes of bandhood and its traumas, legal and otherwise.
OC Weekly:What do you hear most often from bands?
Michael Gardner:"There's a record company that wants to talk to us about a contract." That's usually the point where I step in. Actually, that's not true. I've probably been called more about "Can you shop us?" than anything else.
When should a band think about contacting an entertainment lawyer?
At any critical point when they may begin to make or invest money, and specifically with regard to a partnership agreement. Later, if issues come up and you've already determined how those situations will be handled, it can help avoid or resolve disputes, misconceptions, and senses of "gosh, this isn't fair."
How are young bands most likely to shoot themselves in the foot?
The most common problems are personal problems. The biggest things people do to shoot themselves in the foot are what they do in real life—like substance abuse.
No, I'm talking about legally screwing themselves.
So am I. When the drugs start to flow, you're no longer dealing with reasonable people. They're misbehaving, getting in trouble, making bad decisions.
Bad decisions such as not getting a lawyer on the job who knows entertainment contracts and so on.
Let's say the band stays sober. What else should they not do?
Hook up with a record company or individual who isn't adequately funded, that hasn't really built the road to where they're going. They're doing their first artist, or their 10th that they didn't get anywhere with. There are people who just sign bands and just sign writers because they think those individuals may take off someday and that'll make whatever they have with them valuable.
Why do bands keep falling for this?
You're excited—you're typically young and you've been thirsting for someone who's going to say these things to you.
Say you have a stand-out performer who really hooks the label, but you're not sure whether he'll stay with your particular band, or even stay sober.
The ideal situation would be that they tie their obligation to stick with the company to that person's (the key man/woman) staying with the company. A band high on a company's priorities may suddenly find itself way down the totem pole when their champion has left the company. But, as I said, that is tough to get—because the company is going to be investing its time and money in the band and will certainly not be casual about releasing the band by such a provision. A follow-up position (from the band's point of view) to that may be, "Okay, record company, then your ability to exercise your options to renew the contract for additional terms needs to be conditional upon (among other things) the key man's still being in place with the company." Still tough sledding, though. Most concessions depend on your relative barganing strength. If the company is nuts about you and believes you are their future, you ought to to be able to work out something good.
What else will labels try?
"Take it or leave it"—that's a good sign that you should head for the hills. I don't know anyone in this business you'd want to deal with who behaves that way.
You don't have to think of contracts as pre-signed, unalterable things. For the most part, it's a good idea to start with what comes your way. Record companies typically have a standard document prepared. Typically—and you should always expect this to be the case—the company expects you to look at it and respond. Let's see if we can take it in at the seams a little, let it out at the butt, whatever your particular needs are.
It has constantly been my experience over the years that the better record companies to work with are those that play fair and do not seek to overreach in the contracts, and who expect and encourage the artist to get a lawyer, and that lawyer will want some things negotiated.
What you're saying is they expect you to haggle? Or at least critique?
When you go out to pay for some pants, you expect them to actually fit you. There will always be a lot of "take it or leave it" on a contract. There'll be a limit to what kind of royalty rate they'll agree to—that sort of thing. Their position is, "We can't remake the record business for this one contract."
Okay. What about sampling? Should newer, less famous bands worry about borrowing material from other artists?
You shouldn't do it without getting a license. Obtaining the rights to use another's intellectual property is licensing, and it should just not be done otherwise. You can be sued. There are actually criminal penalties possible for copyright infringement. You can get hoit. A lot of unlicensed sampling was done in the early days of rap. There was an outlaw aspect to it, not just in the material of the songs, or the characters and the public personalities, but also in the borrowing of the material.
They don't call it piracy for nothing.
They didn't invent that, though. Copyright infringement has been around for as long as there have been copyrights. Punk is like that too—something that started on the streets, informal where it came from. Punk in the early days had the worst contracts I'd ever seen. One-page record contracts. People had the attitude, "This isn't commercial music, so what does it matter? This stuff is never going to make any money." People weren't concerned with those kind of formalities, probably didn't care about them. Maybe thought they'd be flying under the radar anyway.
Pop quiz: my buddy samples a juicy lick from the new Strokes album—just a few seconds' worth of guitar—slows it down, loops it, and uses it as the backdrop for some mellow beat-dropping at the local open mic. Ryan Gentles—who quit his job booking acts at Mercury Lounge to manage the Strokes—is in the crowd, recognizes the riff, and takes legal action. What can he do?
That's a very technical question in this sense: his damages are approximately zero to three cents, or whatever. In practical terms, you're not going to see a federal lawsuit out of it. Odds are probably like a lottery that the owner of the intellectual property will ever know. Obviously, if you plan to record something, then things are different.
If someone complains, who's liable? The label? The band? Both?
The record company will have, in any good contract, a section called "Warranties, Representations and Indemnification." From the artist's perspective, this says, "I'm saying that this is so, that all the material I do on these records—if I'm bringing it as mine—will be all mine and infringes no one's copyright." Indemnification means, "If I'm wrong, I will take the hit and not you [the record company]."
Here's a really bad move—the record company doesn't know it, but you borrow something. They put a lot of money into the record—press it, package it, ship it all over the country. Somebody else says, "That's my groove in there, and I'm going to seek a restraining order." A judge places a halt on the sale of the record, and there are potentially hundreds of thousands of dollars at risk. Plus, the people you didn't get the license from, which could have been inexpensive in the beginning, now have a big lever they can use to squeeze the record company, extort them for money. I use the word extort erroneously—that implies they're doing something unethical or illegal. They're not. They're just trying to protect their property.
More information on Gardner's folk-harmony band is available at www.onefootin.com. If your interests are more professional than musical, he can be reached at his practice at 810 E. Commonwealth Ave., Fullerton, (714) 447-3808; firstname.lastname@example.org.
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