Practice

Music Law

Music Law Attorneys

Buche & Associates, P.C. is involved with music law because we love music. We represent clients with music related business, music related intellectual property and litigation.

We are one of the few firms in the nation with significant experience with music related patents. The firm is also a member of NAMM.

Music law is a highly specialized field that couples contract, copyright and other intellectual property laws. The music business is extremely competitive, and constantly evolving with new technologies. Buche & Associates, P.C. is familiar with this law and can help you negotiate the business complexities, minefields, and many nuances of music related contracts.

Also, the firm prides itself on a focus on litigation advocacy. The firm has represented world class guitar and amplifier companies in high stakes litigation across the country.

Some music related fields where the firm has experience are as follows:

Patents

The music business is constantly evolving with new technologies that change the music world. Patents can be used to protect these technologies. Samples of some of the music related patents we have obtained for our clients include the following:

Trademarks

Trademarks protect brands. And brands are everything in the music business. Whether the brands are the names of bands, individual musicians, music product companies, or specific product lines, brands tell consumers about the quality of the musical products or services being sold. Also, product packaging and "trade dress" are important trademark fields for the makers of musical instruments who will often want to use product shapes and packaging to protect their identities. Buche & Associates, P.C. is experienced with the handling of music related trademark matters.

Music Copyrights

Much of music law revolves around the protections afforded to artists under the copyright laws. Copyrights protect artistic expression and exist from the moment an author reduces the expression to a tangible medium, for example, when a musician first records a string of notes. The musician owns a copyright from the point of creation. It is not necessary to file a copyright registration, although to do so is highly beneficial from the standpoint of proving copyright ownership, collecting damages from infringers, and for collecting royalties.

A songwriter owns a music copyright. A copyright is truly a collection of separate rights to:

  • Reproduce the work
  • Distribute the work
  • Create derivative works from the original
  • To perform the work publicly
  • Display the work

These are the most important aspects of copyright for purposes of music law, although other rights exist. A record company will typically own another type of copyright - a sound recording copyright - which is separate from the music copyright and discussed in this article.

A music copyright created under the 1976 Copyright Act (written after January 1, 1978) lasts for 70 years extending beyond the life of the author, therefore, the rights represented by copyright are extremely valuable to Artists, their heirs, record companies and investors.

Music royalties are the proceeds of licensing song copyrights. Royalties are paid in exchange for the privilege of using another person's copyright. There are many types of royalties in music law, depending on which specific copyright is being used. Some typical royalties that are dealt with in the music business include performance royalties, song royalties, mechanical royalties, and synchronization royalties.

Performance Royalties

Performance royalties are owed when a person "performs" a copyrighted song. In music law, such performances can include a stage performance, but can also extend to broadcasts of a songwriter's song. For instance, a restaurant that broadcasts a radio station that happens to plays an Artists song over a very bad stereo system still "performs" a work. BMI®, ASCAP® and SESAC® (www.BMI.com, www.ascap.com, www.sesac.com) are performer's rights organizations - sometimes known as "copyright police" - who will be the first to inform a restaurant or bar that it must pay performance royalties for use of the songs, or face the music via federal lawsuits. Most musicians should join such an organization, which will collect and pay royalties to the songwriters.

Mechanical Royalties

Mechanical royalties are what are paid to reproduce or distribute songs of others on CDs, electronic media, records, ringtones, streams, etc. For the privilege of recording and distributing a song that is not owned outright, a user must secure a mechanical license to use a song. Mechanical licenses for most music publishers can be obtained through the Harry Fox Agency (www.harryfox.com), which is an agency formed to license, collect, and distribute royalties on behalf of U.S. publishers that own and/or control the rights to musical compositions. The Congress sets a statutory rate for mechanical royalty rates. Despite statutory rates, it is commonplace for record companies to contract to pay less than statutory rates in many contracts. Importantly, a mechanical license (1) does not allow reproduction of "sound recordings" or master use rights; (2) does not allow use of songs in videos or movies, which requires a "synch" (synchronization) license; (3) and does not allow performance in public of songs, which licenses must be obtained from the performance rights organizations.

Synchronization Rights

These are rights for when a song is synchronized with another multi-media project, such as music, video game or television. The perfect song at the intro of a movie, video game or television commercial can make or break a product.

Sound Recordings

In addition to considering mechanical royalties, any person who wants to record and distribute the compositions of another must consider the importance of obtaining the "master use rights." These rights relate to the "sound recording" or SR copyright, which is separate and apart from the copyright to a song (words and music). A sound recording is the copyright to the production of the master recording itself (CD, tapes, etc.) Instead of the music publisher, record labels typically own the rights to the sound recordings. Any reproduction of a previously recorded work will require a license of the master.

Common Music Contracts

Recording Contracts

The recording contract a performer may secure will frankly depend on how highly people regard his or her work. Frequently, the terms of a record deal are long term, and they are often structured in option periods that favor labels. Signing with a big label can have undeniable benefits, principally in terms of national exposure and distribution, but the complexities of a record contract, royalty calculations and expenses can rapidly erode any revenues earned by a musician. They terms must be considered carefully and take into consideration the actual negotiating clout of the parties.

Publishing & Songwriter Contracts

Songwriters often enter contracts with music publishers who help the Artist generate income by promoting songs to the general public, record labels, and through multi-media. Music publishers make money by licensing the songwriter's songs to interested parties and then they splits the proceeds with the songwriter. Publishing or songwriter contracts are used to transfer or assign the songwriter' copyrights to the publishers who become the owners of a composition. In exchange for the transfer of ownership, the Artist gets paid from the publisher as money is collected. For example, a common songwriter contract might entitle the Publisher to 50% of mechanical royalty income, 50% of synchronization royalties, and the "publisher's share" of performance royalty income. Also common are co-publishing agreements, where the Artist will get a higher percentage of mechanical, synch and the publisher's share of performance royalties. Artists with a great deal of clout may be able to arrange for "Administration Agreements" where a publisher manages an Artist's portfolio and retains a percentage of revenues collected.

Producer Contracts

A producer is the person or business that orchestrates the actual recording, editing and coordinating of various elements of a song or album into a high quality master recording. Many record companies have in house production facilities, but artists may often seek out a particular producer with well-known skills or reputation in a particular field or genre of music. Producers may work for a percentage of record sales or for a specified fee for the particular project. Producer contracts can vary quite a bit.

Management Contracts

Good musicians are not always good business managers, or publicists. This is why a good manager can often make the difference in whether an artist or band is successful. The Beatles owe much of their early success to manager Brian Epstein, who helped the band to dress and act like the early Beatles (requiring the suits), and who also helped them sign a first record deal with George Martin on EMI's Parlophone label in June 1962. A good manager should be proactive in securing opportunities for the musician(s) and managing his or her business. In addition to helping a musician land gigs, record deals and publicity, a good manager will also know how to select and assemble teams necessary to make a musician a success, for example, tour support, contractors, attorneys, accountants, etc. A manager will frequently work for a percentage, with different arrangements made for expenses. However, manager contracts should also be scrutinized carefully to ensure they clearly delineate fees and the scope of services covered.

Contact

La Jolla, California

875 Prospect, Suite 305
La Jolla, California 92037

Tel: 858-459-9111
Fax:858-459-9120

Los Angeles, CA

2029 Century Park East
Suite 400N
Los Angeles, CA 90067

Tel: 310-593-4193

Houston, Texas

1201 Shepherd Drive
Houston, Texas 77007

Tel: 713-589-2214
Fax:713-583-9644