Darrin McGillis Productions

The two key concepts involved in "protecting" the name of a band are "territory" and "priority". Territory means the area where you use the name, e.g., Miami, Florida, Mid-West, United States, world-wide, etc. Priority, as the word implies, involves who uses the name first. These two concepts work together to limit the scope of protection for a name. If you started using your name first, you can prevent others from using it. However, the law allows you exclusive use of the name only in the area where you have used it. For example, if you started playing the Miami area in 1995 and never played or distributed music outside the Miami area, you could not prevent a band from using the name in Florida. However, they could not use the band name in Miami since you were the first to use the band name there. You also may acquire the rights to your name for Miami in 1995 and nation-wide in 1999 when you release your first record for a major. If someone started usin...

If you look at any of the jackets on your CD's or tapes, you will notice various bits of information. Although the content often differs, many of the same things are on every jacket. It should not surprise you that these things should also go on your tape. However, what is necessary and what does it mean? First for the cover. The only things which should go on the cover of your tape or CD are the band's name and the title of the tape, along with any artwork. Now for the good stuff: What goes on the back cover or J- card insert? The first thing to consider is credit. You obviously want to give yourself, "the band", credit for the record. As for crediting others, that depends on contracts. If you have a contract with a producer, it will surely include a clause whereby you must give him credit on the jacket. The same may go for the recording studio, manager. Receiving proper credit is very important in the entertainment industry. However, the only legal obligation to i...

Most bands play live. Whether you play live shows infrequently or on a regular basis, you should consider a written contract when playing live. A contract can be very simple. It does not have to be full of legal mumbo jumbo to be a contract. It can be as simple as "Band agrees to play on July 17, 2001 for one hour for $3,000 at Venue X." That is sufficient to be an enforceable contract. At a minimum, a contract should have the following elements. First, it should be in writing. An oral contract may be valid, but it is very difficult to enforce. The expression, "an oral contract is not worth the paper it is written is on" comes from experience. Therefore, I highly recommend getting the terms in writing. Second, it should be signed by both parties. This means the agent or venue owner and one member of the band. Each band member has authority to bind the entire band in a partnership. The following terms must be in the contract to be enforceable. First, it must spec...

This article will discuss what to do when a club owner or promoter refuses to pay you. A typical call starts out, "My band played at Club X on Saturday and the owner told us we would get $300 but after the show he said it was a bad night and could only give us $50." My first question is whether the band had a written contract, and in most cases, there was not. You will know from my other articles that I always recommend using a written contract. Even a one sentence agreement stating "Band will play Club on [date] at 10 P.M. for four hours and receive $300" can be an enforceable contract. You are much less likely to get stiffed if you have it in writing. Assuming you don't have anything in writing, are you out of luck? The answer depends on what you want to do about it. First, be insistent about getting paid the agreed upon amount. Make a nuisance of yourself. After getting stiffed, it is unlikely you are going to play that club again, so there is no need to st...

This answer to this question is not as simple as you may imagine. First, you have to narrow the question and ask which copyright? When a band records a demo, they have two copyrights. The first copyright is in the words and music of the song. This is the copyright which most people think of when they talk about copyrighting a song. The second copyright is in the recorded version of the song. This is known as the sound recording. So when you record a demo, you have two copyrights: one in the words and music and the other in the sound recording. If you were to re-record a song, the copyright in the words and music would not change (same song, right?), but you would have a new copyright in the new sound recording. Back to the question of who owns the copyright to the new demo. Let's deal with the copyright to the sound recording first. All the people who contribute to the recording have a claim to the copyright to the sound recording. In reality, however, the person who pays for the...

Sampling is the use of portions of prior recordings which are incorporated into a new composition. Sampling has become an integral part of many genres of music today. When you sample someone's song without permission, it is an instant copyright violation. It is the unauthorized use of copyrighted material owned by another. Sampling without permission violates two copyrights-the sound recording copyright (usually owned by the record company) and the copyright in the song itself (usually owned by the songwriter or the publishing company). If you want to use a sample legally, you must obtain permission from the copyright owner. The copyright owner is usually a publishing company or record label. Remember that you must obtain permission from both the owner of the sound recording and the copyright owner of the underlying musical work. The fee for a license to use a sample can vary tremendously. The fee will depend on how much of the sample you intend to use (a quarter second is a mino...

Contracts are the life-blood of the entertainment industry. This article addresses many of the dangers and misunderstandings about contracts within the music business. First, always get something in writing. Second, make sure you understand the contract you are presenting and the contract you are signing. These may seem obvious, but as discussed below, this advice is seldom followed. Although you may come to agreement orally as to the general terms, you should always reduce the understanding to writing. There are many reasons why you should get it in writing. First, a writing serves to memorialize the understanding between the parties. As time goes by, the two parties might have different memories as to what constitutes their agreement. By getting it in writing, there are no disputes over the terms of the contract. Second, written contracts are much more likely to be enforced by a court in the event of disagreement. Oral agreements are not always unenforceable, but a judge is much ...

Most musicians do not ask me this question like I have phrased it above. Instead, they ask, "what if someone rips off my material"? The answer is, they infringe your copyright. You get a copyright the minute you put your song on tape or write it down on paper. You do not get a copyright by sending your song to the Copyright Office in Washington D.C.; doing this registers your copyright. I will explain the benefits of registering your copyright shortly, but you do not need to do this to prevent someone from ripping off your songs. In order to prove that someone infringed your copyright, you must show that you own the copyright. Second, you must prove that the infringer had access to you song. The infringer, on the other hand, will try to show that he did not have access to your song. If your song was a hit across the country and was on the radio a lot, it should be easy to prove the infringer could have heard it. However, if you pressed 500 copies of your demo and sold it at s...

The term "manager" does not have a precise definition in the music industry. A manager can range from a friend who helps book shows for you, to a corporation that handles dozens of artists. This column will focus on professional managers. A manager is someone who takes an interest in an artist's career and invests his or her time and energy in helping the artist succeed. The duties of managers are rather ambiguous. They include counselling the artist as to all aspects of the entertainment industry including record companies, advertizing and merchandising. Overall, a manger is your link to the entertainment industry. He will advise you as to standard practices, reputations, etc.. Therefore, it is of the utmost importance to get a manager who knows what he is doing. Since the manager will be getting a percentage of your income, be sure you get what you pay for. Some managers will sign you up for a percentage of income and sit back and do very little and wait for the band to...

The question I am most frequently asked is whether a band has to send their material to the Copyright Office in Washington D.C. to keep other people from stealing their ideas. The short answer is no. As soon as you write down your lyrics or record your music (even on your portable cassette recorder), you have a copyright and no one can steal it. From the instant your material is "fixed in a tangible medium of expression" it is copyrighted and protected. By sending your tape to the Copyright Office, you are registering your copyright. So, if you hum a song in your head-no copyright; but, the minute you write it down or record-copyright. Once you put your ideas into tangible form, you have all the copyright you need to prevent someone from stealing your material. What you do need to be concerned about is to being able to prove when you created the musical work. If someone does steal your material, you have to prove that you thought it up first. The most popular way to date your...

Record contracts come in many forms. This stems from the fact that there are hundreds of different record companies. From the so-called "major labels" (EMI, Sony, Warner, PolyGram, BMG or one of their related corporations) to "mini-majors" (A&M, Island and Virgin, in the days of their independence, were the most obvious examples) to the "independents", the contract depends largely on the type of record company offering it. When you first see your contract, if you are like most bands, you immediately sit down and read it. However, you soon realize that it is written in a manner which defies grammatical english. Sentences run on for 14 lines, with little if any punctuation. There are terms and words which you have never encountered. Finally, the sentences constantly make reference to each other ("pursuant to 1(A)3(c)(ii)"). Where do you begin? The first place is with someone familiar with record contracts. Often, a band will be aware of and hav...

This column is simply some general words of advice for aspiring musicians. These comments reflect only my personal experience and observation (over the past 20 plus years), and you will find people who will disagree with me. With that caveat, take it for what it is worth. The first thing all musicians must do is act professional. The people who have power in the music industry (record labels, club owners, managers, etc.) are professionals. Music is their full-time business and their livelihood. They expect to be treated with respect. By acting professional, you immediately rise to another level in their eyes. When a musician calls me on the phone, I can tell in a relatively short period of time whether they are someone I should take seriously, i.e. professional. This sentiment is mirrored by countless other music industry insiders I have spoken with. Professionalism will take a band a long way. A similar bit of advice is to educate yourself about the entertainment industry. Take time o...