Entertainment Lawyers in the Courtroom

My first job as a young associate was with a transactional entertainment law firm – we did not go to court.  When a client found himself or herself in a legal dispute our amazing boss would negotiate a compromise 99% of the time – at least that is the way it seemed to me.  In my two years at that firm we had one client actually go to court.  In that situation we engaged outside counsel on behalf of the client to file suit and I accompanied the litigator to the court.  As it turned out the other party did not show up and my client got a default judgment.  That is the extent of my litigation experience!

It is not an exaggeration to say that as a young lawyer I did not realize that entertainment attorneys go to court.  Seriously.  The firm I worked for made deals (primarily for artists) and drafted and negotiated the contracts supporting those deals.  It was not until I left that powerful law firm and struck out on my own that I realized that quite a few entertainment lawyers go to court.

When I am asked advice about becoming an entertainment lawyer I usually suggest, among other things, that the lawyer or law student to whom I am speaking consider not only deal making and transactional law as a career but to be open to accepting entertainment litigation cases. Doing so increases the options and possibly the income – especially in the early days of solo practice.My friend, Sawnie “Trip” Aldredge is an excellent transactional entertainment lawyer as well as a litigator.  I asked Trip to be a guest blogger for me.  I am pleased to post what Trip has to say about being an entertainment law litigator and hope that this will be of some benefit to you.  Here is his post: 

            “Daddy’s a litigator, those are the scariest kind of lawyer”—Cher in Clueless

When I first started practicing law, my partner and I basically took any case that came in the door while we built our entertainment law practice.  So, while we were learning to negotiate record deals and publishing deals, we were also doing divorces, landlord-tenant cases and the occasional criminal misdemeanor case.  I had been in the legal clinic in law school and found that I had really enjoyed the whole courtroom experience – which actually surprised me.

Gradually, other lawyers started referring music litigation cases to me.  At first, these usually involved representing defendants in no-win situations but over time the cases became better and more rewarding – from royalty disputes to management breakups and ultimately to copyright and intellectual property litigation.  As in every other aspect of the law you learn by studying what other people have done before and by actually doing the work.

Having the ability to actually litigate cases has really helped my practice.  I believe that when you truly understand what goes into trying a case, whether from the plaintiff’s  side or defendant’s side, and when you have an understanding of how a court is  likely to handle a matter, it makes you a better advocate for your client.  As a litigator, I have developed a sense of when it is appropriate to file a lawsuit and when it makes sense to back off and try to negotiate a settlement of a dispute.

There are some significant downsides to trying to be both a transactional lawyer and a litigator.  It does not happen often but sometimes companies don’t want to deal with me on a contractual matter because I have sued them in the past. I reconcile this by knowing that if I had to file suit against this company or this individual then I was zealously representing the interests of my client – and at the end of the day that is what we as lawyers are supposed to do.

It is also sometimes difficult but not impossible to run a litigation practice as a solo attorney.  The big firms will always outnumber you when it comes to man power.   However I have had a number of mentors over the years who have shown me that one can indeed merge a litigation practice with a transactional entertainment law practice and I can tell you that I am rarely bored.

In my opinion, the music business is becoming more adverse; that is more and more companies are turning to litigation to resolve their disputes, often involving matters of first impression.  I can sense that knowing what goes into trying a lawsuit will become increasingly important in years to come.

Be sure to check out Trip Aldredge’s Music and Law Blog.   Thank you Trip.

Staying Current in Entertainment Law - Meet, Greet and Read

In any area of the law the practitioner needs to become familiar with the laws, rules and regulations pertaining to the attorney’s specialty.  And the practitioner not only needs to be familiar with the law but also to keep up with recent cases and other developments in his chosen area or areas of focus.  The same is true in entertainment law.  But in entertainment law the attorney also needs to keep up with what is going on in the entertainment industry that might affect the deals and agreements he is responsible for reviewing, negotiating and with respect to which he is advising his clients.

Knowledge of the industry, who the key people are,  and current trends in contract deal points are important to the entertainment lawyer.  Ultimately the goal is to be connected and gain information over lunch or a drink with key executives and others in the industry (including other lawyers).  But for the new entertainment lawyer that may or may not be possible.

In Nashville it has been my experience that when a new entertainment attorney comes to town or enters the business they are generally welcomed by the establishment.  Music lawyers are frequently in a position to bring new and worthy artists to the labels, publishers, performing rights organizations and others in the business.  Plus when it comes time to negotiate deals with the lawyers it is good to have a relationship with them.  Nevertheless, it still takes a long time to develop the type of relationship that will yield the current information that this post is about – the trends and current deal information.

Another important source of information for the entertainment lawyer is . . . the entertainment lawyer.  In Nashville we have a very friendly entertainment law bar.  We phone or email each other when we need to ask a question about the current state of affairs or when we are seeking advice on a legal issue that we might not have faced before.  I share freely as do 90% of my colleagues here in Nashville.  Don’t forget to make friends and join the entertainment law sections of your state and local bar associations.

Another important way to stay current is to subscribe to and read industry and legal publications.  In Nashville it is important to subscribe to Music Row.  I subscribe to Music Row and to Billboard and to a number of other entertainment and entertainment law related publications, both digital and hard copy.  There are a number of online newsletters and publications that I monitor on a regular basis, including David Ross’ Secrets of the List.

If you are new to entertainment law you also should read all you can about the structure of the business.  For more on this point read my blog post entitled “Learn the Business—Not Just the Law”.

In summary, you cannot rest on your laurels in the music law business.  Things change and it is important to keep up and continue learning if you are going to be of ultimate service to your clients.  Fortunately, there are many resources.  I invite any other entertainment attorneys reading this to contribute by leaving your comments and suggestions.

Do New Entertainment Lawyers Need A Mentor?

I have often wondered how one can become a transactional entertainment lawyer without a mentor? The reason is there are no books that I know of that teach all that one needs to know about the negotiation of all the different kinds of contracts in the music and entertainment industries. I learned the traditional way. I got a job at a successful entertainment law firm. I was fortunate. This is the route that many but not all of my entertainment lawyer friends took. Some, on the other hand, networked and befriended experienced entertainment lawyers. And others read all they could about the business, went to entertainment law CLEs and subscribed to entertainment law form services—hopefully ones with good current commentary.

To the best of my knowledge most entertainment law courses in law schools are focused on reading and understanding the cases. A good idea for both transactional lawyers and litigators. Recently a law professor asked for a review copy of my book “Entertainment Law Mentor: Negotiating Exclusive Songwriting Agreements” because she was searching for a text for the negotiation class she was about to teach for the first time. Of course I sent her a review copy of the book but I also explained that my book was probably too narrow for an entire negotiation course text book, even though it would contain some information applicable to all types of contracts. My book might be a book to be used as a part of a class or supplementary reading. (I am currently writing book two in the series.)

When I graduated from law school I was hired as the Director of the Commercial Music and Recording Program at Georgia State University. I expanded the curriculum and included courses about recording and other music agreements. Since I had never practiced law most of my knowledge was based on being a law clerk for an entertainment lawyer while in school and whatever I could find to read. At that time the so-called “bible” of the music business was “This Business of Music” by attorneys Sidney Shemel and William Krasilovsky. I taught my undergraduate students all about recording agreements based on that book. After three years at GSU I went to work for one of the hottest entertainment law firms in the U.S.and there I found my mentors.

As far as the nuances of deal making and negotiation skills my mentor was the senior partner. And my mentor as far as the nitty gritty paragraph-by-paragraph, sentence-by-sentence, word-by-word negotiation of a contract was the senior associate. The big eye opener for me was that a lot of what I had been teaching was out of date—not wrong—just not current. That’s the trouble with books in the music industry. It is a very fluid industry and contract deal points change. The text book for my class was not at all current when it came to information such as appropriate royalty percentages, the way deals are structured, advances and so forth. I was teaching undergraduates who to the best of my knowledge did not have their sights set on law school and would have no reason to learn the real details of contract negotiation – at least not until law school or law practice.

The kinds of details that I speak of were no where to be read or learned other than from a mentor. A mentor that was currently engaged in the practice of entertainment law at a cutting edge level. In my series of books I am trying to give as much of that information as I can. However, my books are not designed primarily to give the major deal points (royalty percentages, etc.) as much as the myriad of other issues that are not as susceptible to change and can rarely be learned outside of mentoring. My advice to the lawyer venturing into entertainment law is to read everything you can about the subject, attend seminars, network with established entertainment lawyers and if at all possible find a mentor or consultant who can guide you in this exciting venture.

I know that other entertainment lawyers read my blog. I would love to hear your opinions on this subject.

Entertainment Law Practice - Don't Ignore the Small Clients

Once upon a time in Tennessee I got my first client that was paying me six figures in legal fees every year.  My firm consisted of me, an associate and an assistant.  I didn’t have a strong desire to get much larger – I like the solo and small firm life.  I proceeded to aggressively represent my number one client and along the way learned a few lessons.  One such lesson is undoubtedly common sense to many of you but apparently not to me.  Or perhaps I just forgot to slow down and think.

The first lesson I learned was to approach my practice with this in mind:  Everything Changes.  Isn’t that a law of nature itself?  But there are things that I can do to increase the chances of change being in a positive direction rather than negative.

I had some wonderful years with that big client and a respectful number of others.  However, what I did not foresee was that the client, a music business legend, would begin downsizing.  And as he divested himself of companies and stress causing activities, I too began to downsize — but not on purpose!  Eventually the annual fees paid to me by that client leveled off at about twenty percent of what they had been at the highest.

I remember setting in my office one day and thinking that I didn’t have much to do.  And there was a lot less money left at the end of the month.  My associate was handling the bulk of the work and my main job had become reviewing and revising his work.  I was discussing the situation with an advisor.  I have never forgotten what told me.  He said that I had been focusing totally on the needs of the large client and had ignored the smaller clients.  Then when the large client fees dwindled I did not have a good stable of other clients keeping the business healthy.  He spoke as though I was not the first to stumble into this trap.  This all immediately made sense to me.  I did not need convincing.

I took action. I no longer needed an associate.  I let him go.  I also no longer needed a full-time assistant, a luxury for most solos.  I let her go and hired a part-time assistant.  I began to pay attention to all clients big or small.

Today my business is healthier than it has ever been.  If I don’t believe I can give a prospect the needed attention and service then I do not accept them as a client. I have large and small clients.  My assistant is still part-time.  I engage independent contractor attorneys to assist with the work load on an as-needed basis.

Again – the lesson:  I remember when things are going well that everything changes.  However, the change can be for the better if I pay attention to all aspects of my business.  And take care of all my clients – large or small.

Does Your Client Need To Know What They Are Signing?

Entertainment Law clients come in all types just like other people. Most of my clients turn over contract negotiations totally to me. That is fine. That is what I do and it is not what they do. However, I do appreciate the client’s input and opinions on key issues, especially those that are proving to be troublesome in a particular negotiation.

Some clients are readily available when I want to explain what is going on in a negotiation and are willing to express their opinions on the issues. And some are not. I appreciate getting the perspective of the client on difficult negotiation issues. It helps me learn what the client values in the deal (which might not be what I assumed was most important to them). My business clients often are especially helpful by letting me know what is most important to them from a business perspective.

Even if a client declines to take my advice on a particular matter I appreciate being given the opportunity to explain why their decision could lead to adverse consequences in the future. Then if they are understand the possible negative outcome of their decision, and are willing to take that risk, I feel that I have done my job and am able to close the matter – both in the office and in my head.

On the other hand, there are the clients who not only turn everything over to me but who really do not want to know anything about contract matters other than major deal points, such as royalty rates and advances. Not long ago I negotiated a long-term exclusive recording contract for a successful artist. After prolonged and difficult negotiations were complete, it was time to explain the contract to my client and have them sign. I was told by the manager that the artist said “If Steve says it is ok I’m sure it is. Just let me sign it.”

Successful creatives are very busy. And many find business and legal matters distasteful and distracting. I get that. However, I really do not want the total responsibility of making major decisions for my clients — decisions that may affect their lives for years to come.

At a minimum I recommend having a meeting with the client to explain to them what they are about to sign. It doesn’t have to be a lengthy meeting. Just long enough to make sure the client has been told the highlights of the contract. Then they can sign. I usually am able to accomplish this by insisting that the client meet with me to sign a contract. Then I have the opportunity to point out any key elements of the commitment they are about to make.

I know some entertainment lawyers who are perfectly ok with taking total control of the legal matters for their clients and allowing them to blindly sign what the lawyer says is ready for execution. If you are one of those lawyers I welcome your comments. Or if you haven’t had to deal with this yet I also would like to know your opinion.

Songwriting Agreements and Signing Bonuses

I received a call from an attorney who is negotiating his first exclusive songwriting agreement. I’ll get the shameless self-promotion out of the way first! He told me that he found the answer to every question he had in my book “Negotiating Exclusive Songwriting Agreements.” However, he had two concerns about the negotiation process. One I discussed in the book and one that has more to do with negotiation “style” and experience.

In this post I will discuss the matter I covered in the book, only in less detail. The agreement that the attorney was negotiating was offered by a strong independent publisher. The contract provided for periodic advances during the Term of the contract. However, the offer did not include an “execution advance”, sometimes referred to as a “signing bonus”.  This concerned the attorney as it should.  But pleas read the next paragraph twice for emphasis!

Just because the deal offer or the first draft of an exclusive songwriting agreement does not include an execution advance does not mean that it is time to walk away from the deal. Nor does the absence of this advance in the initial offer mean that the publisher is not willing to give it. Ask for that advance and ask for it with confidence. If it is not initially offered I usually will ask for it in my first mark-up or sooner if I am not familiar with the practices of the particular publisher. Why sooner? Because not only do I want to do the best job I can for my client, I also want to know that the writer will be able to pay me!

Signing bonuses are often provided in the contract so the writer will have the funds to pay his or her attorney for negotiating the deal. Both the writer and the attorney want this to be in addition to the writer’s periodic payments so that the writer’s essential income will not be reduced the first month of the deal. These advances are usually recoup-able from the writer’s royalties but not in all cases. It all depends on the bargaining power of the writer.  Even in these days of relatively poor album sales, most publishers will still advance the writer’s attorney fees.  And most of them will pay this advance direct to the attorney when the contract is signed.

Other reasons that publishers pay execution advances are 1) as payment for “Schedule A” songs (existing songs being brought into the deal); 2) as payment for Schedule A demo recordings paid for by the writer; and 3) as a true “signing bonus” to entice the writer to sign with this particular publisher.

In summary, when negotiating the exclusive songwriting agreement, ask for the execution advance. And if that advance is to be used in whole or in part for attorney fees, get this matter settled early.

Unauthorized Practice of Law - Entertainment Lawyers?

Most entertainment attorneys represent clients from states where the attorney is not licensed.  Isn’t that the unauthorized practice of law?

Recently I received an email from an attorney interested in entertainment law.  The question essentially had to do with whether he, an attorney licensed in and practicing in State A, can represent an individual who lives in State B in negotiations with a record company in State C.  This is an excellent question and I dare say there might be some difference of opinion as to the answer.

If one really wants to be thorough the I would suggest that research of the laws and cases in all three states is called for.  The unauthorized practice of law statutes are generally focused on the protection of that state’s citizens and talk about whether an unlicensed person is practicing law in their state for valuable consideration or soliciting their citizens for such legal representation.

Reality:  I do not know any entertainment attorneys who only represent clients who live in the state in which the attorney is licensed and has his or her primary law office.   Most have a national clientele.  As one very successful entertainment lawyer replied when asked the question: “I am practicing law in Tennessee regardless of where my client is”.  In truth he was.  He was even sitting at his desk in Tennessee when he answered the question.  He was not going into the jurisdiction where his client lives to practice law.  The client either comes to Tennessee to see him and/or conducts most if not all of his or her business with the attorney by telephone, email, video chat, text message or some other form of electronic communication.

Caveat.  I am not talking about making a court appearance in a foreign jurisdiction.  Clearly one not licensed in that jurisdiction may not do that (with some exceptions like small claims court, etc.).  However, most states make arrangements for an attorney from another jurisdiction to appear in their courts if properly introduced to the court by an attorney licensed in that state.

The question of traveling to another state to solicit clients is probably risky as is physically going into another jurisdiction to negotiate the terms of an agreement.  To the best of my knowledge most of the entertainment attorneys I know do not do either of the foregoing – but some do.  In my case (and the case of most of the entertainment lawyers I know) my out of state clients have initiated the contact with me in my home state, either in person or by some electronic medium, and all negotiations and transactions are conducted while sitting at my desk in my office which is in Tennessee.

I do not claim to be an expert on this subject.   If you are concerned I would suggest that you conduct your own research on this question and confer with a knowledgeable professor if you are still a student or know any law professors.  And I definitely will appreciate it if any practicing entertainment attorneys who read this would also comment and confirm what I have said or correct me please!

Entertainment Law - Go Where The Work Is!

I was practicing entertainment law in my hometown of Memphis, Tennessee when an older (and undoubtedly wiser) man came up to me after a regular meeting I attended and said:  “I don’t understand why you are here.  Why don’t you go where the work is?”  Memphis had had a great run of artist signings in the early to mid 80s — there was a lot of rock and R&B talent being signed to major and independent record deals.  But by the ‘90s the buzz on Memphis rock/pop bands had waned and a lot of the R&B talent had or was moving to Atlanta which was fast becoming a recording mecca for that genre of music.  I actually had a young R&B trio (my clients) call me from Atlanta one day and tell me they were there for a visit and were not coming back!  I assume they came back to get their personal belongings but it was clear that they were going to continue their career in Atlanta – not Memphis.

I was 45 years old when the man came up to me after that meeting. When I was asked why I didn’t go where the work is it was as if a light bulb lit up!  The big “DUH!” Suddenly for the first time I related entertainment law to any type of work.  For example, if I wanted to build automobiles then it would probably be best if I moved where automobiles are built.  So, the way I saw it I had three choices: (1) Expand my practice to areas other than Entertainment Law and stay in Memphis; (2) spend more time (a lot more time) in one or more of the entertainment business centers (then LA, NYC, Nashville and to a lesser degree Atlanta) and stay in Memphis; or (3) relocate to where the work is.

My first boss in entertainment law was Joel Katz, in Atlanta.  Joel is my model for the number (2) choice above.  In the two years I worked for him it seemed to me he was living in hotels in New York, Los Angeles or Nashville every week.  He must have been gone as often as he was in the office if not more.  He was (and still is) a great deal maker, rainmaker and relationship person.  Because I didn’t feel like I had the personality or skill set to be like Joel, I ruled out number 2.  I also ruled out choice 1 because I had never done anything but entertainment law and I wanted to keep doing it.  I was already making regular trips to Nashville and over the next couple of years I began to make more trips there and opened a small branch office in a building owned by a client.  In 1995 I moved myself, my associate and my assistant to Nashville and opened an office on Music Row.  I loved it from day one.  Over the next few years I became a part of the industry in Nashville.  And for me it definitely turned out to be where the work was and still is.

I am not so foolish as to believe that every lawyer must take my path to be an entertainment lawyer.  I didn’t move to Nashville until I had a good client base there.  I grew where I was planted and expanded my client base with travel and networking.  If you have had a different experience then please let me (and my readers) know about it.  I would never insist that my way is the only way!

Negotiating Exclusive Songwriting Agreements is Live!

It is now out!  “Entertainment Law Mentor : Negotiating Exclusive Songwriting Agreements” is live at amazon.com and will soon be available elsewhere, including on this site.  If you are serious about becoming an entertainment lawyer and want to learn more about the nuances and specifics of negotiating an Exclusive Songwriting Agreement then my hope is that this book will be a helpful resource to you and your clients.  You can check the book here.

Learn the Business - Not Just the Law

I know there are a lot of lawyers, solo and big law attorneys alike, who would like to add entertainment law to their existing practice areas.  I know this because they call and email me.  The first thing I now tell them is “Entertainment attorneys should learn about the business of entertainment.“

A few years ago a member of an entertainment law listserv to which I subscribed asked me to mentor him.  At the time he was a new solo, having spent a number of years in-house at technology firms.  He had aspirations of becoming an entertainment attorney.  While willing to help when I could I did not feel that I had the time to formally train someone in entertainment law.  Refusing to accept “no” for an answer the new solo finally offered to pay me my attorney hourly rate for some mentoring sessions.  I decided to give it a try.  Doing some consulting/coaching might fit in nicely with my goal of publishing “how-to” entertainment law books and articles.

I enjoyed my sessions with this attorney and we have become friends.  And I hope the consulting was of some benefit to him.  However, it quickly became apparent that the attorney lacked more than entertainment law knowledge.  He lacked a basic understanding of how the entertainment industry works.  I found that I spent at least as much teaching the basics of the business, such as what a music publisher does, how the money flows in record deals, the difference in a personal manager and a business manager, etc., as I did teaching entertainment law.

If you want to be an entertainment attorney then I recommend that you learn something about how the entertainment industry works.  There are a lot of good books on the subject and even entire degree programs at universities around the country.  When I was a law student and young lawyer the book to read for over-all industry knowledge of the music business was This Business of Music.  At the time the book was authored by Krasilovsky and Shemel.  The latest edition is Krasilovsky, Shemel, Gross and Feinstein, all of whom are (or at one time were) entertainment and intellectual property attorneys.

A more recent and very popular overview of the music industry book is All You Need To Know About The Music Business by Donald S. Passman, also an entertainment attorney.  Based on my personal experience, the Passman book is probably an easier read for someone hoping to get a broad overview of the music industry.  I am sure there are likely equally good resources for types of entertainment other than music (film, TV, etc.).  You just need to search them out.

However you learn about the workings of the entertainment industry, it will greatly benefit your ability to understand entertainment agreements and deals if you first learn something about the business you are serving.

Lawyer Perfectionism - The Good, The Bad and The Ugly

I am a perfectionist.  Many people consider this a positive characteristic for transactional attorneys.  I am one of those people.  However left unchecked, being a perfectionist can cause stress, wasted time and loss of income.

The Good.  My productivity coach, Tara Rodden Robinson, uses the term “Good Enoughism” to describe the desirable personality and work style for maximization of productivity.  I make the argument that attorneys, surgeons and others should be perfectionists.  She on the other hand argues, from her own career as a former OR nurse and more, that with experience the optimal style for those type tasks is being a perfectionist when the critical need is there but knowing when what has been done is truly “good enough” and to keep moving and close.   Perfectionism is good when needed in order for me to protect my clients but I begin to hurt myself and perhaps my clients if I don’t close the deal and move on to the next matter that is awaiting my attention.

The Bad.  At times perfectionism has been bad for me when it blocks me from moving forward on a matter – or even blocking me from making a good and aggressive beginning.  Several years ago I complained to an attorney friend that I was procrastinating on beginning to draft an agreement requested by a client.  That was a bad thing for my client who wanted their contract – and for me who was trying to build a new law practice.  My friend asked the question: “Are you sure it is ‘procrastination’ and not ‘perfectionism’?  Are you stalling because you fear you cannot draft the contract perfectly?”  He was dead right – the contract was a case of first impression for me.  I have never forgotten this lesson.  Sometimes perfectionism is really the underlying cause of my procrastination.

The Ugly.  Unchecked perfectionism can lead to some really stupid work behaviors in my experience – the “ugly”!  I have written a book which is almost ready for publication.  I have been stubbornly fooling around with formatting issues.  It is a legal book so I want it to be “perfect”.  But – does the format really have to be perfect?  Yesterday morning I spent 3 hours fooling around with the headers of the pages!  The book is formatted in sections so it was not easy to get it perfect (and I never did).  When you read my book how much will it really matter to you that my name is at the top every left-side page flush with the right margin and the book title is at the top of the every right-side page flush with the left margin?   Would you still read the book if that varied occasionally?  Would you even notice? Bringing the ugly point back to the subject of law practice, this morning I found an email I sent to my coach a couple of years ago.  In it I said “ I just drafted a simple, short agreement for a client that should have taken 20-30 minutes because I have a well developed form for what he requested.  In fact, if I had stopped when it was good enough It would have taken just about that long.  However, because I am obsessed with making it perfect and “pretty” it took an hour and 15 minutes.  I decided that it should be on one page and spent the rest of the time scaling it down and reformatting the document to achieve that objective.”  The client got the agreement and a bill for a half hour of my time.  And I lost 45 minutes of billable time.  The plus side of experiences like this is I get a good reminder that I need to be mindful to not let my tendency toward perfectionism get out of control.

In summary, perfectionism can be good and I believe has a place in law practice.  But left unchecked it can be harmful – both to the attorney and the client.  Am I alone or have any readers experienced this problem?

Most Lawyers Don't Work For Free

I am still getting regular emails and phone calls from songwriters wanting everything from me to pitch their songs to asking my fee to review a Single Song Agreement they have been offered.  Same with other artists.  Most of the writers tell me how much “everybody” thinks their songs are hits and how although they have no money to pay me now I will be greatly enriched at some future date if I work for free now.  Technically, legitimate record companies work for free at first. Personal Managers and Business Managers work for free now.  Agents work for free now.   Most entertainment lawyers I know in Nashville do not work for free now or later as a general rule.  I suppose it is supply and demand in a free market economy.  If we work for you on spec we cut into the time required to service the paying client – and as a general rule there are more than enough of those in a music industry city.

None of the foregoing artist “team members” are actually working for free.  They are working under an agreement which pays them anywhere from 5% to 20% of an artist’s gross entertainment income for a number of years into the future.  Very few of the established team members are interested in talking to artists who do not have something going on for them, although they might take on one or two development artists.

I have taken clients on a percentage basis, a practice common on the West Coast.  I have one right now but that is about my limit during any given period of time.   I wish I could help you all but there are people who depend on me for their day-to-day livelihood (including my mother - and between you and her she will win every time - :).  And honestly, if you have nothing going for you then you probably don’t need my services now anyway.  At least not until you have been offered some sort of Agreement for your talents.  On the occassion that I do work on a percent the client is normally brought to me by a manager or other industry professional.

I am only writing for myself and as a method of education for the readers who are not currently in the mainstream music business.  Nashville is not a town where many experienced entertainment lawyers work on a percentage basis.  You certainly can ask them but don’t get your feelings hurt if you get a “no”.  Just go to the next person until you find the one that shares your vision.  And if nobody hears it but you and your family and friends then you might need to change your game plan and build a career as an independent.

My Entertainment Law Career Gratitude List

As a part of my morning pages I always do a short gratitude list.  I find it a good way to start the day.  Today’s list was primarily about my career so I thought I would share it with my readers.  Here’s the list.

1.  I am doing exactly what I wanted to do and am getting paid for it.  When I was in college I would share with my band mates that my ultimate goal was to be a hippie musician entertainment lawyer.  Ok so I am not a hippie (never was really) and much less of a musician than I was then.  But I am an entertainment lawyer which was my goal when I entered law school.  My school had no courses in entertainment law or even copyright until I petitioned for it.  I have been lucky – blessed is a better choice of words – to have achieved the goal, including beginning my career with one of the eminent entertainment attorneys in the U.S. – Joel Katz.

2.  I am able to help others in my career.  I have never been solely motivated by money although I do expect to be paid for my skills and experience.  My soul would not be at peace unless my work was in someway helpful to others – and I believe that what I do is.

3.  I can keep doing what I do as long as I have a clear head.  Now that I am in my early 60s my law practice is not slowing down.  In fact it is growing.  I am grateful that I can keep doing this as long as I have sharp mental capacity.

4.  Technology has enhanced my practice.  While technology has closed doors to some, in my case it has enabled me to be more productive in my career.  I not only can work faster I am able to offer my services at reasonable rates.

It is the nature of the holiday season that most in America give some thought to what they are grateful for.  With that in mind, I have one parting thought.  Gratitude should go forward.  By that I mean, if I am grateful for someone or some thing I should show that in some way by sharing with others.

Happy Thanksgiving!

Two Do's and 2 Don'ts - Tips for the New Business

Recently my stepdaughter decided to leave her job at one of the major labels and become an independent designer.  Her primary expertise is album artwork.  Katie is a “creative” and has no business experience.  I shared with her a few tips about being an independent business person.  After doing this it occurred to me that many of my readers also might find this information useful.  While my “tips” are based on years of experience as a solo entertainment lawyer, they are common to most service businesses with which I am familiar.  Here we go:

1.         Do Get a Deposit.  Many artists and other creatives are very trusting – I know I am.  I have learned the hard way with new clients to either get the entire amount in advance or, at a minimum, a deposit before I begin working.  Believe it or not, there are people who will hire you, accept the fruits of your labor, and then never pay you.  If you get a 50% deposit up front at least you will have been paid something if you never get paid the balance.  Make it clear that this is non-refundable if you complete the work.  Doing this also helps the cash-flow.  However, be forewarned that if you end up with an unhappy client you might find yourself refunding the deposit.

2.         Don’t Say “No” to New Work Just Because You are Busy.  I frequently turn down new clients for various legitimate reasons such as I am not the right attorney for the job or perhaps simply because I determine that they are not the kind of client that I want to represent.  However, I do not turn down work because I am busy.  I do however let the client know a realistic time frame on when the work will be completed.  Then I let the client decide if they want to hire me.

3.         Do Have a Written Engagement Agreement.  Always have a written agreement with your client.  This isn’t surprising coming from a lawyer.  A written agreement serves a lot of purposes.  It puts in writing precisely what is expected of the person being hired and what is expected of the person doing the hiring.  If you are relying solely on an oral agreement you might unfortunately find out that as time passes people’s recollections of what was agreed to tend to get blurred.  If it is in writing and signed it is difficult for your client to claim that you said you would perform certain services when you don't recall having said that – or at least that is not what you meant.  People can have genuine misunderstandings about what is being said on the front end.  A written agreement helps clarify the important details.

4.         Don’t Forget About the IRS.  You no longer have an employer taking withholding tax and social security payments out of your paycheck.  It is all up to you now to set aside enough to pay your taxes come April 15th.  I am not a tax attorney or an accountant so I will not suggest how much you should pay and how often.  I will leave that for a discussion I recommend you have with an accountant.

Of course the above list is not all inclusive.  But it is a good start.  If you are a self-employed artist, songwriter, publisher other business person, then see how the above might apply to your business.  If you have other tips you would like to share then please do so in the comment section.

Artists and All Others: How to Handle Unanswered Emails and Voicemails

I just re-read a very informative blog post by Peter Bregman in the Harvard Business Review entitled “When Your Voicemails and Emails Go Unanswered, What Should You Do?"  This is an excellent read for any professional, business person or creative artist. 

Even though I rarely pitch artists and songwriters to labels and publishers, it is not unusual for me to get emails from people requesting that I do so.  They hope I will listen to their music or songs – or both.  And then present their material to labels or publishers.  Incredibly, sometimes I get emails or calls back the same day asking if I have listened yet!  I can be a bit forgiving because I assume this person really does not have any concept how busy lawyers and others in the music business are – and as I understand it in most any other business.  But even if I accept their lack of business etiquette (and sometimes downright rudeness) as understandable, I nevertheless do not accept them as clients.  I cannot represent everybody and attitude is just as important as talent, ability to pay, etc.  So when I get emails or calls from people who show impatience to this degree, it helps me eliminate this prospective client quickly on the front end.  And I certainly would not want to send someone like this to a label or other industry gatekeeper with whom I have a trusted relationship.

Now – perhaps more importantly for my artist and songwriter readers:  A&R executives, producers and others in the business are just as attuned to who is going to be trouble for them and or their company to work with and all other things being equal, it helps eliminate one CD from the stack of submitted demos piled high in their offices.

Like the author of the Harvard Business Review Blog, I have experienced the same frustration with unanswered emails and voicemails.  And I have also violated the patience advice I am giving to you.  So I need to remind myself of the advice given in the HBR Blog.

Persistent or Pest--Pitching your Songs and Artist Demo

 Many years ago I was attending a meeting of a songwriters’ association.  The speaker, a friend of mine, had procured many major artist cuts of her songs.  She was not affiliated with a publisher and did all of her own song plugging.  She made regular trips to Nashville to network and to pitch her songs.  I have never forgotten something she said during that presentation:  “There is a fine line between being persistent and being a pest.”

Take heed young writers and artists.  If you believe in yourself and your creative product, persistence is a requirement of success in the music business.  But take care not to be a pest.  Whenever you call on an a&r person, producer, artist, publisher, lawyer, or other person with your demo, be very respectful to that person and of that person’s time.  Your goal if you do not get any interest in the product you have presented is to be invited back when you have new material and if you are lucky to learn any specifics about what this person is looking for.  I have passed on deal shopping representation of artists and writers before and they have actually argued with me about my decision.  Guess who didn’t get invited back!

Because of my blog and my website, I get a lot of requests from songwriters and artists to help them place their material or help them get a record deal.  These days I decline to represent them 90% of the time because I no longer want shop deals in this difficult music business economy.  Nevertheless, some of those hopeful writers and artists keep emailing me and messaging me on social networking sites to the point of becoming pests.  When what they really need to do is email me when they have new material and ask if I would mind taking a listen.

Recently after several email exchanges I decided not to represent a new writer because networking on her behalf was part of what was needed – and as I said, I do not want to do that any longer – for anybody.  The writer wrote me a very kind letter, thanking me for my time.  I immediately gave her a couple of names of other people who might be able to help.  She was polite and persistent over our two weeks of exploring whether we would work together.  Never was she a pest.

Who Decides--the Lawyer or the Artist?

A baker doesn’t ask his attorney’s opinion of which dough to purchase.  However, as any entertainment attorney knows, he or she may often be asked for opinions and advice on artist career matters which technically have nothing to do with the legalities of the decision being made.  It is a part of what we do.  I have sat in on many a strategy meeting with managers and their artists.  I am there as a consultant because I have seen a lot during my career in the entertainment industry.  And I am also there to keep an eye out for any possible legal issues pertaining to the matter being discussed.  But I am not there to make the ultimate decisions regarding of the course of action being considered.

Most artists hopefully understand that ultimately major career decisions are theirs to make.  Often a distaste for things business related and a very busy schedule will lead to the artist delegating a lot of the decision making to the team members.  This might make sense when it comes to routing tour dates, the correct quantity of merch to order, and other matters of that nature.  But large career altering decisions should ultimately be made by the artist after listening to his or her advisers. 

I do not find that delegation to me of making legal decisions for my clients to be a sound policy – and frankly that does not work for me for a number of reasons.  A very successful client of mine once told another artist “Steve does what needs to be done for you – and then he tells you he’s done it!”  Ok – I was taking care of business for a very active touring artist.  But only matters within the purview of legal “maintenance” of a successful career.  Major decisions are a totally different matter.  I recently had another successful client enter into a long-term recording agreement – not the artist’s first.  After prolonged and difficult negotiations were complete and it was time to explain the contract to the artist, I was told that the artist told the manager “If Steve says it is ok I’m sure it is.  Just let me sign it.”

No – please come into my office and let me explain where we are with the contract.  Or I will prepare a bullet point sheet of the important deal points.  But I will not make the decision for you.  I will tell you what I think.  But it is your career and your life.  The decision is yours not mine.  Personally I don’t want the liability.  And if the deal sours someday, which many do, I don’t want you coming back and asking me why I “let you” sign the contract.  But mostly I want you to have a long and successful career.  You are the CEO so you must understand the basics of your business’ significant choices and make them for yourself.

Got it?

Music Lawyer - Living the Dream

Today I feel particularly grateful.   I have been able to make a living in the music business as an entertainment attorney for 30 years.  When I was in my late teens and early 20s I used to jokingly tell my band-mates that when I grew up I wanted to be a rock-and-roll hippie musician lawyer.  One of those band mates recently said “You became what you always said what you wanted to be.”  Well, sort of.  I never really was a hippie but I was certainly in agreement with the liberal and idealistic values of my generation.  Age and experience have tempered a lot of my “rock and roll” attitudes (as well as my politics).  Nevertheless, career-wise I am doing what I always said I wanted to do.  Not as powerful and famous as I thought I might be (except occasionally in the mind of a younger me) but certainly happy and grateful that I have the skills and a client base that keeps me busy and allows me the freedom of a lifestyle I enjoy.

As I review my career path it is almost as if I envisioned who I wanted to be and then went on cruise control.  Quite by happenstance I found myself more than once to be in the right place at the right time for my career as an entertainment attorney to get launched and advance.  Today upon reflection and with the benefit of 20-20 hindsight, I believe that my journey has been in the hands of a higher power all along (rather than happenstance) although I would not recognize that for many years. 

I like what I do.  I enjoy transactional work.  I want you to hand me the contract you were given and let me apply my experience and skills to negotiate the best deal possible for you given your relative marketplace strength.  Or, if my client is the drafting party then I love preparing the first draft to the specifications given me by him or her.  The work is hard, time consuming and often emotionally difficult, but at the end of the day worth the effort.  

Today I feel particularly grateful. 

Peer Pressure in the Music Business

During my years as an entertainment lawyer I have seen music biz colleagues leave their Music Row offices and continue their business careers in in other businesses.  Without fail I later hear comments like "so and so says he is now happier than he has ever been." Makes one wonder.

While the great majority of my clients are really good people and a joy to work with, there are still the "crazies" out there. . . . the Off-Music Row (figuratively) con-men, the thugs, the disloyal, the smiling liars, truly insane - to name a few.  I have often wondered if it is really any different in other industries and have come to the conclusion that it is probably the same.  The solution for me has been to at least attempt to carefully screen clients and matters before accepting them.  Not everybody has that luxury and I am grateful that I can do that -- if I will.  I chose the life of a solo and small firm entertainment lawyer for life style considerations -- not for the money.  So it is very important for me to find peace and serenity one day at a time.  But still I wonder at times -- would it have been different had I made a career in a different industry?

I was discussing this with a friend last week.  He is the former manager of 4 major label artists, one of whom reached super star status.  Before getting in the music business my friend was an accountant at a fortune 500 company in an industry having nothing to do with entertainment.  When I queried "I wonder if it is different in other businesses" he said "The difference is that in the non-entertainment world your work is about the job . . . about achieving success in the job you find yourself in.  Whereas in the music business it may be about that but it is also strongly about the peer pressure to succeed.  It is about looking good to other people in the business -- not just about doing a great job."  Wow!  I can't imagine what it would be like to be in a world where it didn't matter if one looked successful to his or her peers. To get caught up in that lifestyle is of course unhealthy mentally and spiritually.  

The only way I know to escape this "you better be successful in everybody else's eyes" syndrome is to find the self confidence and satisfaction with where I am and the job I am doing on my own.  To put on the music biz blinders and become comfortable that I am making a contribution to my clients, my family and hopefully society.  Expensive toys are an option -- but only if I need or want them.  Not because others need to see that I have them.

Stress Free Work

For me, practicing entertainment and business law has been high stress, particularly as I have gotten busier (for which I am grateful).  Getting stress free in the midst of client needs and demands and sometimes unreasonable adversaries has not come easily for me.  To some degree my "problem" as a lawyer has been that I care about the results of my work and what happens to my clients.  That might sound a bit lame, but detachment can be a blessing if one wants to leave their work "at the office".  I remember one of the greatest compliments paid to me by a client -- a member of a chart topping rock act.  He told another musician in front of me "Steve cares".  That is all fine -- however I think my job would be easier and less stress producing if I were colder and more objective.  Nevertheless, there is a solution -- maybe more than one.  

For me stress free work has required learning skills and techniques -- and practicing them until they become ingrained.  Of great benefit over the past year has been my application of the principles found in David Allen's best seller "Getting Things Done".  That plus learning that I cannot survive without a balanced approach to life, never forgetting to nurture the spiritual and physical areas of my life.  Then -- I can find the bliss and even joy that comes with stress free work.