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 someone approaches your band willing to "shop" your tape, there are many questions you should ask. First, though, the term shop needs some explanation. When someone shops your tape, it means that they take a copy of it and try to get you a record deal. Basically, people who shop tapes claim to have some contacts that may be able to land you a record deal. Great you say, someone to help me get a record deal! Not so fast. First, people don't shop tapes for free. Never pay someone to shop your tape. Shopping a tape is speculative in that it is a gamble. No one can guarantee they can get you signed. A true shopping deal will pay the person out of future royalties from the deal they secure for you. If someone shops your tape and gets a record label to sign you, they will want a percentage of the income from the record deal. This is standard. What varies is the percentage. Some people are scrupulous and take only what is fair. Others over-reach. What is fair compensati...

A band is a business. The more you treat your band like a business, the more likely you are to succeed in the industry. There are essentially three forms a business can take. First is a sole proprietorship. If you are a solo artist, this is the route to take. However, if you are a band, this form is unavailable for obvious reasons. Therefore, your choices are between a partnership or a corporation. There are a few other forms businesses can take, limited partnerships, limited liability companies, etc., but they are too complicated to address here. A corporation is an interesting concept. The way it works is you create a company which is owned by stockholders. This stock is not traded on the Stock Exchange, but owned by the band members. In the entertainment industry, a band which incorporates forms what is know as a loan-out corporation. What the corporation does is contract with other parties for your services. For example, if you have a loan-out corporation and you get a record dea...

Not enough bands realize that their band is a business. Some band members may be familiar with business practices, but my experience has been that most are not. Therefore, this column will address what to do when you start a business. The very first thing a band should do is get a business license from the county they live in. A business license is also called a "fictitious name certificate" or a "doing business as" (d/b/a) license. What this certificate does is tells the world that X,Y & Z are doing business using the name "The Band". The procedure for obtaining a d/b/a license is through the County Clerk. They will require an application and a small fee. Generally, another legal requirement is that you publish your application in a newspaper for 3 weeks. Most newspapers do this in their legal classified sections. The newspaper will publish your d/b/a license and it will read something like this: "LEGAL NOTICE: X,Y & Z are doing business as...

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...

Work for hire is a special term used in the United States Copyright Act. Normally, when a person or group creates a copyrightable work, whether a song or a computer program or a sculpture, the person or persons creating the work have a copyright in the work. Thus, the creators can exploit the work and receive money for their creative energies. A work for hire is when a person creates a copyrightable work but does not own it. How can this be? The Copyright Act allows for the copyright to go not to the creator but to the person who hired the creator to make the work. The law treats the creator as if he did not even participate. The employer owns the copyright and it is as if they created the work themselves without any help from the actual creator. Musicians should be very careful of work for hire contracts. Under a work for hire contract, you have absolutely no right in the music you create. There are legitimate times when work for hire contracts are acceptable. If you write music f...

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...

Publishing is a lucrative area for bands that write their own material. When a band writes a song, they own the copyright in that song. Publishing is the money you receive for writing the song. A quick distinction must be made between the copyright in a song and the copyright of a sound recording. When you record the song for a record company, the company owns the copyright of the sound recording (the version you record for them), but you retain the copyright of the underlying song. Publishing money comes from the copyright of the song, not the sound recording. Bands that write songs own this particular copyright and receive publishing money from their ownership. The owner of the song is entitled to certain exclusive rights. This means that only the copyright owner can do certain things with his song, unless people pay him to use it. When people pay the copyright owner, the owner is said to grant a license. The money from these licenses is what is called publishing. There are essential...

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...