Entertainment attorney Michael Aczon says technological developments have changed the legal issues musicians face.
Photo: Courtesy Michael Aczon
It's always been critical for musicians to understand the legal issues they face, no matter which segment of the music business they're involved in. A legally informed musician is more likely to be a successful one. As technology has turned the music business on its head in recent years, the legal issues musicians must deal with have evolved. To get a sense for some of these new concerns, I spoke with Michael Aczon (www.aczon.org), who is the author of The Musician's Legal Companion (Cengage, 2008) and who has spent the past 25 years practicing entertainment law (see Fig. 1).
What, in recent years, would you say is the most important issue that has changed for musicians legally?
Just as they have to do more themselves technologically and artistically, musicians now have to deal more with legal issues before they interact with other people. They have to cover their legal rear ends much the same way as they have to do their own artist development.
Why is that?
During the past couple of decades on the business, technological, and social sides of the music industry, you've seen consolidation of record companies and of media in general — and radio and television specifically — and a business that has focused more on distribution and promotion than on artist development.
What do musicians have to do these days legally that they didn't have to do previously?
The first is to secure their own trademarks. We've turned into a world of getting your name out there and establishing yourself as a trademark, or transferring the rights to establishing your trademark to somebody else.
You mean trademarking the band name?
Yes. People are putting their work on social networks, selling their stuff on CD Baby, [and so on]. And the next thing you know, you find out that you're infringing on somebody else's trademark because they were using the same band name as you for the last ten years. A lot of people don't do basic research to find out if there's some other band with their name.
Let's say there's a hypothetical band called the Dodos. They make a MySpace page and put their music up there, and then they find out there's another band called the Dodos that has already trademarked the name. Is that trademark infringement?
Yes, it is.
Just the act of putting up a page with that name would be considered infringement?
Yes. The presumption is that if you're going to use a trade name, you've researched that name before using it. Now, let's go to the legal and the practical. The legal side is that if somebody has gone through the steps to register that name — either federally or even internationally — and they continue to use it, then clearly they're not going to give that right up. On the practical side, here's some independent band that's spent a couple of thousand of their own dollars recording, and that's put their music on a Web site, or started selling it on, for example, CD Baby. The legal and practical side of this scenario is that the person who already owns that trademark can make the second band shut it all down, take the name off of their products, and change their name. To a baby band, that couple of thousand dollars and the time, effort, and energy to rebrand their band means something.
Can you register your own trademark, or is that something that has to be done through an attorney?
[You can do it] yourself, and the USPTO — the United States Patent and Trademark Office [uspto.gov] — has relatively easy-to-follow instructions. I like to say if you can install Pro Tools software on your computer, you can probably read through this well enough to do it on your own. Keep in mind, though, that just like installing Pro Tools, if you're doing it for the first time, it may be a trial-and-error process. So it's important to weigh if the possibility of doing it incorrectly makes you want to have an expert do it for you.
It requires doing a search first?
Exactly. And there are search engines. I'm not going to recommend any, but you can go online and find search companies.
Why has the trademark issue changed? Didn't you always have to trademark your name? Is it because of the online aspect of it?
Right. I think that because of the ability to go out there and almost automatically cross state lines with your work [due to the Internet], a lot of acts are trademarking — I wouldn't say prematurely, but they're pulling the trigger a little bit quicker than they used to. Certainly more quickly than 20 years ago, when you really weren't thinking about “Oh, do I get a trademark because I'm going to go outside my city and try to sell CDs?” I'm giving away my age here, but when I started out, if I was going from, say, California to Utah to sell my recordings, I had to think, “Now I'm crossing state lines. Maybe I should get a few things in order.” These days, I could be recording something this morning and it could be available for sale internationally by this afternoon.
What other legal issues have changed for musicians?
Copyrights. And again, this is a shift with technology. Before, musicians would think solely about two copyrights: their compositions and their recordings. Now, if you're putting up a Web site, you have to think about copyright ownership of photographs, text, and videos; as well as all the audio.
So let's say that a band puts up a Web site and they post photos that a photographer friend gave them. Would the band have the right to use those photos?
If somebody shoots band photos, friends-of-the-band photos, you definitely want to make sure you have permission from that person to use the pictures for public use. I've experienced it in my practice where someone is a fan one second, but fan status changes when the record goes gold. Another issue to consider is that of privacy rights. People have a right to privacy, and they ultimately control anything associated with how that right is used. What if I shot video of a fan doing a crazy dance at my show and wanted to put that on my Web site or YouTube? Technically speaking, if I want to post or sell videos including her, I would need to obtain a release from the dancer in order to legally use her name and likeness. That's a pretty big burden to put on some rock band.
What's your advice for musicians in terms of dealing with these new issues? It's pretty expensive to put an attorney on retainer.
It's really expensive. Self-education goes a long way. I'm going to shamelessly plug my own book, but there are a number of great books out there that give a good basic overview of what some of the issues are. I don't want to make anybody [paranoid about legal issues], but I think having a legal paper trail helps: videotaping or recording and following up with some documentation of what are potential legal issues. Who wrote the song? That question comes up frequently. You can strengthen your legal position a lot just by having an original version of the song as soon as you've recorded it. That way, if somebody says they wrote their way into it, now you have two versions — and you can say, “Here's what I brought to the band.” And [then the question becomes] did they add significantly to [your song], or was it just arrangements, or was it just an ancillary part?
So musicians should take on some of the legal responsibility themselves. But at what point should they go to a lawyer?
Before actually going out and retaining somebody, I think musicians can find seminars in some of the more musically oriented geographic areas. I haven't seen a lot of them online yet, although I wish that I would. But I'm seeing more and more lawyers who are going out and doing legal seminars, and arts organizations that are doing music seminars.
Like music conferences?
Exactly. We're seeing more and more of those. And I think it's also a good idea to pay an attorney for a basic consultation. It lets them know you mean business.
You're saying to go to the attorney, pay that person for a half hour or an hour of time, and see if you have any legal issues you need to deal with?
Do you think there will be more and more legal issues confronting musicians as technology progresses?
We've been moving so fast because of technology, particularly in the last ten years, that the legal issues have had to follow it. I think those are shaking out, and my personal prediction is that it's going to slow down a little bit now that some legal and business models are being accepted by the creative, business, and consumer sides of the industry.
Mike Levine is EM's executive editor and senior media producer. He hosts the twice-monthly Podcast “EM Cast” (emusician.com/podcasts).