Even though audio is the currency of the music industry, musicians depend heavily on print to sell their music. Savvy musicians acknowledge that they have only one opportunity to make a good first impression, and they therefore work hard to ensure that the quality of the visual and written materials that accompany their music is high. You too should be aware of some of the legal and practical challenges that you will face when preparing the packaging for your recording project.
KEEP IT LEGAL
You will need to secure three sets of legal rights before finalizing the packaging for your project: common law and constitutional rights, intellectual property rights, and contractual rights. Let's look at each set, one at a time.
Every person has a constitutional right to privacy. Therefore, when finalizing the packaging for your project you must secure an individual's permission before using his or her name, performance, photograph, likeness, or other biographical material. One way to do that is to have everyone involved in your project sign a release form. Lawyers familiar with multimedia and entertainment law should be able to draft a release for a relatively small fee. You should have a stack of release forms available with blanks for filling in the name of the artist involved; the circumstances under which you obtained the person's likeness, photograph, or biographical material (for example, as a session musician, as a model on your CD artwork, and so on); and a broad description of how you intend to use their likeness.
The two primary intellectual property rights that you need to secure before going to print are copyrights and trademarks. Copyrights cover all of the music and artwork used on a project; trademarks identify the various “brand names” — such as your band name or the name of a production company, a studio, or a product endorser — associated with your project.
Because a copyright holder owns and controls the exclusive right to make copies of a work, it is crucial that you clear all rights to use copyrighted material, particularly with regard to CD packaging. You must obtain a mechanical license from the publisher of a song before including it on a CD. The license will probably require that the songwriter and publisher receive the proper credit on all printed materials. If you plan to include lyrics on the packaging, let the music publisher know that when you obtain your mechanical license; the right to publish lyrics is a separate right that is usually granted free of charge. When the right to use samples is negotiated, the owners of the original songs that were sampled usually require that very specific credit be printed on all copies of the new recording (see “Working Musician: In the Clear” in the March 2002 issue).
Artwork, photographs, and liner notes are subject to copyright ownership laws, and you will need to get permission to use such works from the artists who created them. Each artist should sign a license or a use agreement that clearly states how you are using the copyrighted material, what fees are being paid for the use, any restrictions on your use (for example, you may be able to use a photograph on a CD booklet and for posting on Web sites but not on T-shirts or advertisements), and other terms in connection with the artwork.
If you want to own and have full use of any visual materials for your packaging, consider having artists provide their services on a “work for hire” basis. With work-for-hire arrangements, you commission an artist to deliver your artistic vision, be it in a drawn, written, or photographed form. In exchange for their fee, artists will often transfer their right of ownership and copyright in the resulting work to you. Have your graphic artists sign a written work-for-hire agreement for their services.
Trademarks, which identify the source of goods in the marketplace, are some of the most important and protected rights in print media. If you don't learn about them before going to print with the packaging for your record, you might well have some problems. Be careful, for example, if a band with the same band name as yours has already taken the necessary legal steps to use that name exclusively in the entertainment industry. If they catch wind of your upcoming release and send you a “cease and desist” letter, you will not only have to rename your band, but you will need to reprint all of your artwork with your new band name — a costly proposition.
Using another company's trademark or even something closely resembling its trademark (such as a name or logo) in your packaging may imply a business association that the original trademark owner won't allow. Companies with strong trademarks — especially those that do a lot of merchandising with their trademarks — vigorously protect them through legal channels. I once represented a punk band that used the same name as a character on a network television show. The full legal force of a major television production studio descended on the band with hundreds of pages of proof that they owned the rights to use any names associated with the show in all forms of entertainment, causing the band to eventually change its name.
Before using a trademark that you do not own, be sure to get the permission of the legal owner. Your printed materials may have to include statements of who the owners of various trademarks are, whether you have permission to use the trademark, whether you have an affiliation with the trademark owner, and what the extent of your affiliation with the trademark owner is. An extreme example of a trademark notice was when the group Aqua sold millions of copies of its song “Barbie Girl.” After a much publicized legal battle with Mattel, copies of “Barbie Girl” had to have stickers put on them with a statement of trademark ownership and a note that the band had no association with the owners of the “Barbie” trademark.
Everything is negotiable
The last set of legal rights that affect your packaging are contract rights, or rights that are negotiated. At the top of the list here are negotiated credits, including musician, production, management, and other common music-business credits. “Courtesy credits” to other record labels for allowing their exclusive artists to appear on another project are a result of contractual obligations. Less obvious are the logos, artwork, and carefully drafted statements in printed materials that are the result of band partnership agreements, settlement agreements, and other contractual obligations of an act. Endorsement deals usually require that an act include a phrase stating on all product packaging or promotional materials that an act exclusively uses a certain product. Likewise, you might be required to include multiple label or production-company logos on CDs if an artist's exclusive recording services are being “shared” by more than one company.
In addition to the various legal factors you must consider when putting together your packaging are the nuts-and-bolts issues. Here are some key practical pointers that I have culled from CD manufacturers and graphic designers.
Give yourself enough time
Remember that the printing process is different from the speed of photocopying, and it is important to allow enough time to prepare your materials, calculating backwards from the deadlines given to you from your printing and manufacturing professional. Lauraine Bacon, vice president of KABA, a CD and multimedia production facility in northern California, told me, “KABA and companies like ours can turn around a project in a very short period of time, if necessary. However, for the independent artist — especially one doing it the first time — I would first take the date on which you need delivery and move it back a week, simply for a ‘mental cushion.’ Ideally, you would initially place your order six weeks from your mental-cushion date to factor in shipping, mistake time, changes in design, the back-and-forth process of graphic proof approval, and circumstances out of your control. I highly recommend formulating some elements of your packaging while you're recording your project. Bring a manila folder to the studio and start filling it with photos, lyrics, credits, and graphic ideas. That way, you will be well prepared by the time you see your printing professional and not rushing the visuals associated with your project.”
Be clear about your costs
Even though printing and photocopying costs can be fairly competitive, be sure to talk to a printer who can explain what you are getting for the budget you have to work with. Price quotes vary widely when an artist makes nonstandard requests, especially with CD manufacturing.
Use several proofreaders
Much the way that listening to the same mix repeatedly can tire your ears, having one person proofread printed materials multiple times can easily lead to errors slipping through. A simple word-processing spell check doesn't suffice when it comes to final drafts of printed materials, especially with credits that include names. Have a few people whose objective opinions you trust go over your materials so you can avoid typos or awkward wording on the final product.
Don't be fooled by the Web
The required resolution for photos and artwork for printed materials is higher than that required for Internet posting, so be sure to discuss technical requirements such as exact layout measurements, resolution for scanning, and color limitations with your printing professional.
Keep your materials consistent
A well-planned approach that allows you to reuse elements for your printed materials creates an association between the graphics and your music and can also cut down on costs.
By carefully dotting your i's and crossing your t's, you can create product packaging that is artistically, technically, and legally solid. Above all, remember that the printed medium supports your musical artistry. Try to do your music justice by presenting it in the best way possible.
After all these years,EMcontributorMichael A. Aczonstill can't get over how great the packaging is for Sgt. Pepper's Lonely Hearts Club Band.