SUPERSTAR CATALOG SALES OCCURING NOW ARE SUBJECT TO TERMINATION IN 35 YEARS!

      Under the 1976 Copyright Act, the length of copyright protection was extended for the life of the author plus 70 years. However, it also established a right for authors or their heirs to terminate copyright transfers after a certain period of time. In other words, even if an artist or songwriter signed a contract that purports to transfer all rights in a work in perpetuity, even if the artist or songwriter is “unrecouped”, the Copyright Act provides that the author can terminate that grant and demand that the rights revert in a shorter period of time. Recording artists and songwriters have been terminating their contractual transfers and demanding back control of their copyrights. As anyone reading the headlines is aware, numerous superstar artists and songwriters (e.g., Bob Dylan, Bruce Springsteen, Sting, etc.) have sold their entire catalogs to third parties for enormous sums. However, it does not appear that the 1976 Copyright Act sets forth any limit on how many times an author is entitled to terminate the transfer of copyrights – which would seem to indicate that 35 years from now these superstars (or, more likely, their heirs) will be entitled to again terminate the contractual transfer and regain the copyrights under Section 203 of the Copyright Act.

     Generally speaking under the Copyright Act, for copyright grants made on or after January 1, 1978 (the effective date of the 1976 Copyright Act) the termination period is 35 years under Section 203 of the law. For grants by an author on or after 1978, termination must be exercised prior to the 5 year period beginning at the end of 35 years from the execution of the grant. Although there are certain formalities which must be complied with to effectuate termination of the transfer, this essentially means that recording artists and songwriters were entitled to exercise their rights of termination on post-1978 works as of the start of 2013. Current headlines announce that many superstars have done precisely that, and then turned around and sold their music catalogs for millions of dollars. Although under Section 203 heirs who execute such a grant post-1978 cannot reclaim those rights again (e.g., Prince's estate), grants executed by an author on or after January 1, 1978 (including recent catalog sales by Dylan, Springsteen, Sting, etc.) do appear that they can be recaptured again after 35 years. 

    As a matter of music business history, back when the 1976 Copyright Act was drafted, few practitioners would have envisioned a world where the artists might not need the record companies to finance, manufacture, warehouse and distribute their physical records. Back then the expectation was that, although any particular artist could exercise the termination right, what would effectively happen is that the label and artist would simply be forced to renegotiate a deal to continue working together (either with the artist or with the heirs of the deceased songwriter or artist). Now, in the current digital transmission age, this is no longer necessarily true. Any artist can demand back the copyright in the masters and then simply offer them directly to fans on the artist’s website or the artist can license the rights to an online aggregator or digital streaming service with little or no expense. This is particularly true in the case of the recordings of certain well-established artists because those artists would not need the record company’s ongoing support to finance the recording costs to create new recordings, store their product nor require the funds for promotion and marketing. High profile artists with established fan bases and large catalogs of music like Blondie, the Cars, Bruce Springsteen and others have no need for much in the way of advertising and marketing, and there is no longer a need for manufacturing, distributing or warehousing of their product. Simple ownership and possession of the digitized masters is sufficient to conduct business.

     It is noteworthy that, unlike song publishing contracts which generally provide for the assignment and transfer of a song copyright to the publisher, most record contracts have provided that the sound recording is created as a “work for hire” for the record label. Under the 1976 Copyright Act the termination provision is not applicable to certain types of copyrights, including a genuine “work for hire” grant. However, this does not preclude recording artists from exercising their right of termination. Sound recordings are not listed under section §101(2) which identifies various works that constitute a work for hire. Moreover, several years ago I litigated a case, Ballas v. Tedesco (41 F.Supp.2d 531 (D.C.N.J. 1999)), where a New Jersey Federal District Court addressed this issue and Judge Greenaway held that the sound recording in that case did not qualify as a work for hire. There is a great deal of case law addressing the applicable legal employer/employee issues involved including those established in the seminal Supreme Court case Community For Creative Non-Violence, 490 U.S. at 738, 109 S.Ct. 2166 which held that a statue did not satisfy the terms of §101(2) because it "does not fit within any of the nine categories of ‘specially ordered or commissioned' works enumerated in that subsection, and no written agreement between the parties establishes [the statue] as a work for hire.” Most case law that addresses the subject of “work for hire” holds that whether a work created by an employee is a work for hire or not depends on various factors as well as the circumstances of the relationship - and not just the language of the contract. This area of law has been ripe for dispute by any recording artist who tries to exercise termination rights against a record company that resists the claim where the facts suggest that no genuine “work for hire” relationship ever existed.

     Many superstar artists and songwriters have exercised their termination rights under the 1976 Copyright Act, regained their catalogs, and then made multi-million dollar deals to sell the catalogs. Current copyright law provides that the a copyright extends for the life of the author plus 70 years, so 35 years from now Section 203 of that same 1976 Copyright Act may allow the heirs of those superstars to terminate these current transfers, regain the catalogs, and start the whole process again resulting in more remuneration generated from the copyrights.

Wallace Collins is a New York lawyer practicing primarily in the area of entertainment law. He was a recording artist for Epic Records before attending Fordham Law School. www.wallacecollins.com

 

Understanding The Compulsory License and How It Applies To Digital Transmissions Under The Music Modernization Act (MMA)

Under the US Copyright Act, Section 115 provides for a compulsory license to make and distribute sound recordings subject to certain terms and conditions of use. Under the compulsory license procedures, an artist need not ask the songwriter or music publisher for permission to make a recording nor negotiate a license fee. Instead, an artist merely informs the publisher of the recording and agrees to pay royalties as music is sold at the rate set by statute. Once a song has been recorded and distributed to the public on recordings, any person or group is entitled to record and distribute their own recording of that song without obtaining the copyright owner’s consent, provided they pay the statutory royalty and abide by the copyright law requirements.

In order to take advantage of this compulsory license, a notice must be sent to the copyright owner and then monthly accountings made thereafter. In order to obtain a compulsory license, you must (1) serve a timely Notice of Intention to Obtain a Compulsory License (NOI) on the copyright owner; and (2) make monthly royalty payments to the copyright owner. The fee for physical recordings is currently 9.1 cents per song (or 1.75 cents per minute of playing time) while the digital streaming compulsory license fee is a small fraction of that amount. To verify the current rate, check the Copyright Office's guide to compulsory licenses (On the site, you can click “Mechanical Royalty Rate”).

The Music Modernization Act (“MMA”) changes the Section 115 compulsory licensing process for digital music providers from song-by-song licensing to blanket licensing.  Prior to the MMA, song-by-song licensing required digital music providers to identify and locate, serve a notice on, and make payments to the copyright owners for every song on the provider’s service.  This is a huge task, and many lawsuits were filed against digital music providers alleging noncompliance with the song-by-song licensing requirements.  The MMA changes this approach to a blanket license that is administered by a new organization, the Mechanical Licensing Collective (“MLC”).  The blanket license is essentially a one-stop-shop for digital music providers.  The MLC will establish and maintain a comprehensive public musical works database, match works used by digital music providers, collect royalties from digital music providers, and distribute royalties to copyright owners.  The new blanket license became effective on January 1, 2021. 

The compulsory license provisions for recording music apply only to the use of the song for non-dramatic musical compositions. You could not, under the compulsory license, use it for dramatic purposes, such as in an opera or an overture to a musical. The compulsory license applies only to audio-only sound recordings distributed to the public. Therefore, it cannot be used to record a song for use on a television show or movie soundtrack. In such a case, permission would need to be obtained directly from the copyright owner.

Wallace Collins is an entertainment lawyer specializing in entertainment, copyright, trademark and internet law. He was a recording artist for Epic Records before attending Fordham Law School. www.wallacecollins.com

IS A TIKTOK DANCE ELIGIBLE FOR COPYRIGHT PROTECTION?

When I was recently asked whether someone could procure copyright protection for a TikTok dance, it got me thinking and so I decided to write this article on what I found based on my research.

Under US Copyright Law, a dance created by a choreographer or dancer is considered a creative work that can be granted copyright protection if: (i) it is an original work; (ii) it is a coherent whole (i.e., not just individual movements); and (iii) if it is fixed in a tangible medium (e.g., written illustration of the dance steps and movements or a video recording of the dance).

When someone creates a choreographed dance on a platform such as TikTok, that creation just might be eligible for copyright protection. However, simple dance routines - like an end zone celebratory dance or a series of yoga positions - have been deemed not protectable under copyright law. Basic dance moves or simple routines cannot be copyrighted separately, but a creator can copyright a dance as long as it is an original work which consists of the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole. All of the dance moves which constitute the choreographic work must be described with enough detail so that the work can be consistently performed. Most protectable choreographic works are usually those which are intended to be executed by skilled performers in front of an audience, such as a ballet or a modern dance routine.

In most cases that TikTok dance probably falls into the non-protectable category, unless  there is a sufficient combination of body movement, spatial movements and coordination with musical accompaniment such that the social media dance would be protectable. Protection is more likely if the performance is by a skilled dancer, is for the entertainment of others (i.e., not for others to mimic for their own enjoyment) and involves a discernable storyline or theme.

Choreographic works are afforded the same exclusive rights as any other copyrighted work so, once protected, it would be copyright infringement and the basis for legal action if someone without legal authorization publicly performs the choreograph work or adapts, distributes or reproduces the work. When a dance is deemed copyrightable then copyright accrues from the time it is fixed in a tangible medium or expression (written or recorded) and lasts for the life of the author plus 70 years. Registration is not required for protection, but registering early grants additional protections and is required before the author can commence legal action in court. If a video was posted online that you believe infringes on your copyright, your first step should be to request that the offending video be removed under the Digital Millennium Copyright Act.  However, the digital service provider can restore the material if the alleged infringer sends a counter-notice explaining why the material is non-infringing – which then leaves the copyright claimant for the choreographic work with no alternative but to file a lawsuit against the alleged infringer as the  last  resort to protect the copyright.

Wallace Collins is an entertainment lawyer specializing in entertainment, copyright, trademark and internet law. He was a teenage recording artist for Epic Records before attending Fordham Law School. www.wallacecollins.com

The ABCs of NFTs (Understanding "Non-Fungible Tokens")

NFTs are suddenly headline news! Artists and musicians are using NFTs as a new way to release their products into the marketplace. NPR reports that the artist Grimes recently sold several NFTs for over $5 million and an NFT video clip of LeBron James making a historic dunk for the LA Lakers earned more than $200,000. Rolling Stone reports that the rock band Kings of Leon is releasing its new album in the form of an NFT. At the auction house Christie's, bids on an NFT by the artist Beeple are already reaching into the millions. It appears that what started as an online hobby among a certain group of tech and finance geeks is now being catapulted into the mainstream.

The best way to try to understand an NFT is to break it down to its essentials. The term NFT stands for non-fungible token. It is "non-fungible" meaning you cannot exchange it for another item of equal value. The "token" refers to a unit of currency on the blockchain, which is how cryptocurrency like Bitcoin is bought and sold. In other words, unlike monetary currency or other items which you can exchange, swap or trade, an NFT is unique and one of a kind.

However, even if you think you can understand how to define an NFT, understanding the valuation of an NFT can be even more evasive and nebulous. To wit, an NFT is a type of cryptocurrency that, instead of holding money, can hold assets such as art, tickets and music. NFTs operate on a blockchain which is a publicly accessible and transparent network. In other words, anyone can see the details of any NFT transaction. Each computer involved in the transaction becomes a part of the network, which keeps updating and cannot be hacked due to its inherent nature as a multi-part system. The bottom line is that an NFT, by its nature, has a value that is subjective and fluctuates much like a share of stock on Wall Street.

Therefore, when you purchase an NFT you are essentially purchasing a kind of bar code, a form of certificate of authenticity that serves as proof that a certain version of something unique belongs to you. What you purchase is a unique code that manifests as art or music, but in a different format. However, when you buy an NFT in most cases you are not getting the copyright or the trademark to the item, you simply own a piece of code in a blockchain that the marketplace deems to be a valuable item.

Not to over-simplify, but it might help to think of procuring an NFT as somewhat akin to acquiring a collectible. However, not all NFTs are originals, many are the digital equivalent of a reprint. In the case of an NFT, however, even the reprint has what is essentially a unique barcode or token on the blockchain. Keep in mind, the blockchain is a type of decentralized record keeping so that, instead of one institution like a bank having a ledger of all transactions, the blockchain uses a vast network of computers that all hold each other accountable on a shared public record. That makes it hard to remove an NFT from the internet entirely, and it also means that there is a way to trace an NFTs origin and transaction history - reinforcing the uniqueness and value of a given NFT.

With millions of dollars pouring into NFT transactions, many enthusiasts believe NFTs will soon expand beyond trading art, memes, music and video clips. There is an expectation that NFTs could be used as collateral for loans in the not too distant future. Silicon Valley investors, of course, believe the NFT possibilities are limitless. Then again, there is always the risk that this tech frenzy is just a passing fad or another speculative bubble. Although many NFT backers believe the system's built-in scarcity will keep values up, that is only true as long as the surge of interest persists. If you bid on and pay for an NFT but enthusiasm then plummets, so will the value.

It seems that every day some newfangled invention arrives to bedazzle us, but whether it is the next big thing, an iPhone-like quantum leap forward, or just another snake oil salesman's charade remains to be seen. Buyer beware. As for me, although I might dabble a bit in cryptocurrency investment, it is probably best to watch how NFTs perform in the marketplace until the dust settles. In the meantime, I will just enjoy the artwork that hangs on my wall and vibe to the music I play on my sound systems - I understand how to measure the value of that experience.

Wallace Collins is an entertainment lawyer specializing in entertainment, copyright, trademark and internet law. He was a recording artist for Epic Records before attending Fordham Law School. T: (212)661-3656 www.wallacecollins.com

WHAT IS A MUSIC PUBLISHING DEAL? & DO I REALLY NEED ONE?!

The term "publishing", most simply, concerns the business of copyrights. As a songwriter you own 100% of your song copyright and all the related publishing rights until you sign those rights away. Under the law, copyright (literally, the right to make and sell copies) automatically vests in the creator the moment the expression of an idea is "fixed in a tangible medium." (In other words, the moment you write it down or record it on tape.) With respect to music, there are really two copyrights: a copyright in the musical composition owned by the songwriter and a sound recording copyright in the sound of the recording owned by the recording artist (but usually transferred to the record company when a record deal is signed).

You own the copyright in your work the moment you write it down or record it, and you can only transfer those rights by signing a written agreement to transfer them. Therefore, you must be wary of any agreement you are asked to sign. Although it is not necessary, it is advisable to place a notice of your copyright on all copies of the work. This consists of the symbol "c" or the word "copyright", the author's name, and the year in which the work was created, for example: " (c) John Doe 1993."

The filing of a copyright registration form in Washington D.C. gives you additional protection in so far is it establishes a record of the existence of such copyright and gives you the presumption of validity in the event of a lawsuit. Registration is also required for a lawsuit to be commenced in Federal court and, under Federal law, allows an award of attorney’s fees to the prevailing party. The easiest way to register your copyright is directly online at www.copyright.gov

As defined by the copyright law, the word "publish" most simply means "distribution of copies of a work to the public by sale or other transfer of ownership, or by rental lease, or lending". As a practical matter, music publishing consists primarily of all administrative duties, exploitation of copyrights, and collection of monies generated from the exploitation of those copyrights. If you make a publishing deal and a publisher takes on these responsibilities then it "administers" the compositions. Administrative duties range from filing all the necessary registrations (i.e., copyright forms) to answering inquiries regarding the musical compositions.

One of the most important functions of music publishers is exploitation of a composition or "plugging" a song. Exploitation simply means seeking out different uses for musical compositions. Music publishers have professional quality demos prepared and send them to artists and producers to try to secure recordings. They also use these tapes to secure usage in the television, film and advertising industries.

Equally important as exploitation is the collection of monies earned by these musical usages. There are two primary sources of income for a music publisher: earnings that come from record sales (i.e., mechanical royalties) and revenues that come from broadcast performances (i.e., performance royalties). Mechanical royalties are collected directly from the record companies and paid to the publisher. Performance royalties are collected by performing rights organizations - ASCAP, BMI, and SESAC - and then distributed proportionally to the publisher and to the songwriter. In addition to plugging and administrative functions, it is also important to know that there is a creative side to music publishing. Since producing hit songs is in the best interest of both the writer and the publisher, good music publishers have whole departments devoted to helping writers growing and develop. The creative staff finds and signs new writers, works with them to improve their songs, pairs them up creatively with co-writers and hopes the outcome will be hit records.

If you decide to do a publishing deal then the main issue for negotiation is going to be the language pertaining to the calculation and division of the monies. In the old days, most deals were 50/50 because there was a concept that the "writer's share" was 50% and the "publisher's share" was 50%. This, of course, was an invention of the publishers. Legally, these terms have no such inherent meaning but their calculation is defined in each individual agreement. Most modern publishing deals, however, are referred to as "co-publishing" deals and the monies are usually calculated at around 75/25 meaning the writer gets 100% of the 50% writer's share and 50% of the publisher's 50% share for a total of 75%. It is best for the writer to insist that all calculations be made "at source" so that there are not too many charges and fees deducted off the top before the 75% calculation is made. fees additional. Keep in mind, however, that the advance paid to the writer by the publisher is later recouped by the publisher out of the writer's share of income from the song. So, the net business effect is that the publisher pays the writer with the writer's own money to buy a share of the copyright (and the right to future income) from the writer.

Although a writer can be his own publisher and retain 100% of the money, the larger publishers in the music business usually pay substantial advance payments to writers in order to induce them to sign a portion of their publishing rights to the publisher - and this can be a good thing for the writer. Although a deal for a single song may be done with little or no advance payment (provided there is a reversion of the song to the writer if no recording is released within a year or two), there should be a substantial advance paid ($5,000-$25,000+) to a writer for any publishing deal with a longer term (e.g., 3-5 years).

Publishing deals have to do with more than just the money though. Since every music publisher is different, it is important for the songwriter to assess both the business and the creative sides of a music publisher before signing a deal.

Wallace Collins is an entertainment lawyer specializing in entertainment, copyright, trademark and internet law. He was a songwriter and recording artist for Epic Records before attending Fordham Law School. T: (212)661-3656 www.wallacecollins.com

SOUND RECORDING AND SONG PUBLISHING TERMINATION RIGHTS UNDER U.S. COPYRIGHT LAW

      The 1976 Copyright Act provides for the termination of copyright transfers. Even if an artist or songwriter signed a contract with a record company or music publisher which purports to transfer all rights in a work in perpetuity, the Copyright Act provides that the author can terminate that grant and demand that the rights revert to the author in a shorter period of time. Recording artists and songwriters are now entitled to terminate their contractual transfers and demand back control of their copyrights; songwriters can demand return of their musical compositions from music publishers and recording artists and record producers can demand return of their sound recordings from the record companies.

     Generally speaking, for copyright grants made on or after January 1, 1978 (the effective date of the 1976 Copyright Act) the termination period is 35 years under Section 203 of the Copyright Act. For pre-1978 works the termination period is 56 years after copyright was originally secured under Section 304 (c)-(d). For grants on or after 1978, termination may be exercised anytime during a 5 year period beginning at the end of 35 years from the execution of the grant or, if the grant concerns the right of publication of the work, then the period begins on the sooner of 35 years after publication or 40 years after execution of the grant. Although there are certain formalities which must be complied with to effectuate transfer, this essentially means that recording artists and songwriters were entitled to start exercising their right of termination on post-1978 works as of the start of 2013.  

     Not unexpectedly, the record companies as well as the music publishers are not pleased with the copyright termination provision and the inevitable ramifications thereof. With respect to songs and music publishers, some seminal cases have already been decided. In Scorpio Music S.A. v. Willis (11 CV 1557 (C.D. CA 2012), California Federal District Judge Moskowitz determined that original Village People member, Victor Willis, could terminate his transfers and recapture a direct copyright interest in many of his group's songs, including "YMCA."  In this case, after Willis notified Scorpio that he was terminating the prior transfers, Scorpio sued arguing that Willis could not terminate because a majority of each song's authors had not also agreed to terminate their transfers. The court sided with Willis, ruling that an author can unilaterally terminate the transfer of his share in a copyrighted work without his co-writers. Willis stands to become the undivided owner of a one-half to one-third interest in 33 song copyrights. Although the Scorpio decision addressed a fairly narrow point concerning multi-author transfers, the decision sets the stage for the bigger battles looming on the recorded music side of the business. The same termination procedures apply to all copyrighted works, including the separate and equally lucrative sound recording copyrights transferred to record labels as part of typical recording artist contracts over the years.

     Back when the 1976 Copyright Act was drafted, few practitioners would have envisioned a world where the artists might not need the record companies to finance, manufacture, warehouse and distribute their records. Back then the expectation was that, although any particular artist could exercise the termination right, what would effectively happen is that the label and artist would simply be forced to renegotiate a deal to continue working together (either with the artist or with the heirs of the deceased songwriter or artist). Now, in the current digital transmission age, this is no longer necessarily true. Any artist can demand back the copyright in the masters and then simply offer them directly to fans on the artist’s website or the artist can license the rights to an online aggregator or digital streaming service with little or no expense. This is particularly true in the case of the recordings of certain well-established artists because those artists would not need the record company’s ongoing support to finance the recording costs to create recordings, store product nor require the funds for promotion and marketing. The more digital the music business becomes the more obsolete the large record labels may become for established artists. High profile artists with established fan bases and large catalogs of music like Blondie, the Cars, Bruce Springsteen and others would have no need for much in the way of advertising and marketing, and no need for manufacturing, distributing or warehousing of their product. Simple ownership and possession of the digitized masters would be sufficient to conduct business.

      Unlike song publishing contracts which generally provide for the assignment and transfer of a song copyright to the publisher, most record contracts provide that the sound recording is created as a “work for hire” for the record label. Under the 1976 Copyright Act the termination provision is not applicable to certain types of copyrights, including a genuine “work for hire” grant. However, this does not preclude recording artists from exercising their right of termination. Sound recordings are not listed under section §101(2) which identifies various works that constitute a work for hire. Moreover, several years ago I litigated a case, Ballas v. Tedesco (41 F.Supp.2d 531 (D.C.N.J. 1999)), where a New Jersey Federal District Court addressed this issue and Judge Greenaway held that the sound recording in that case did not qualify as a work for hire. There is a great deal of case law addressing the applicable legal employer/employee issues involved including those established in the seminal Supreme Court case Community For Creative Non-Violence, 490 U.S. at 738, 109 S.Ct. 2166 ("CCNV") which held that a statue did not satisfy the terms of §101(2) because it "does not fit within any of the nine categories of ‘specially ordered or commissioned' works enumerated in that subsection, and no written agreement between the parties establishes [the statue] as a work for hire.” Most case law that addresses the subject of “work for hire” holds that whether a work created by an employee is a work for hire or not depends on various factors as well as the circumstances of the relationship - and not just the language of the contract. This area of law appears to be ripe for litigation by recording artists who want to exercise their termination rights where the facts suggest that no genuine work-for-hire relationship ever existed. 

    From what I have researched, it appears that in most cases the artist has a fair likelihood of prevailing over the record company on this point when the CCNV "work for hire" factors are applied (i.e., artist not an employee (e.g., no unemployment benefits paid/withheld, etc.), artist not under the direct supervision and control of the record company during the creative process, etc.) - so I expect that the record companies will make a decision to negotiate with the bigger superstar artists and then turn the other cheek with the recordings generating less income and just let them revert back to the artists (since a bad precedent in a lawsuit could open the floodgates for other artists to demand back their masters).

     The termination rights of an artist or songwriter are generally subject to a 5 year window. Termination must be made effective within the termination window or the right to terminate the grant is forfeited. To be effective, the artist or songwriter must serve a written notice of termination on the original record company or publisher (and/or any successors) no more than 10 and no less than 2 years prior to the effective date stated in the notice. The notice of termination must state the effective date of termination. Perfection of the termination requires that a copy of the written notice also be filed with the U.S. Copyright Office prior to the effective date of termination.

     Although the termination rights of an artist under the 1976 Copyright Act would only be effective for the U.S. territory, the size of the U.S. consumer market for recorded music still makes this a valuable right to reclaim. However, what is good for the artists and creators might further erode the influence of the major record labels and prove detrimental to them as music industry powerhouses in the future.

Wallace Collins is an entertainment lawyer specializing in entertainment, copyright, trademark and internet law. He was a songwriter and recording artist for Epic Records before attending Fordham Law School. T: (212)661-3656 www.wallacecollins.com

D.I.Y. v. GETTING SIGNED TO A MAJOR RECORD LABEL IN THIS SOCIAL MEDIA ERA

The question these days for musical performing artists seems to be whether it is better to do it yourself ("DIY") or sign with a major record company. The answer depends.

It used to be, back in the 1970s, '80s, '90s and even into the start of the new millennium, that the major record companies had talent scouts scouring the country and searching the clubs for talent. There were layers of A&R staff at major labels (A&R stands for “artist and repertoire”) who were often producers that would take artists into studios and make recordings. That way a record label could find out what an artist might sound like on record before proceeding further. The A&R staff would also review songs from publishers and songwriters to choose “hits” for the artists already signed to the label to record. Sometimes artist managers and lawyers would pitch talent to the A&R personnel, a process which was commonly referred to as “shopping” an artist to a label. For the most part, those days are done.

These days the A&R staff could more accurately be referred to as R&D (research and development). They no longer need to scour the clubs or take demos shopped to them by managers and lawyers. Artists can make state of the art recordings in their homes and distribute it digitally with the push of a button. The labels can search the internet and websites like YouTube and Facebook to see what artists are garnering interest from the public. These days it is more about creating a “buzz” with an online presence and doing live shows to build a fan following. The record companies are interested in analyzing data before they take an interest in investing time and money in a project.

The major labels are now less about finding and developing raw talent and more about marketing and promoting the artists that have developed themselves and built the widest public appeal. Rather than bring new artists into the studio to work with them, the labels tend to find artists that are already performing live and drawing crowds, and already have at least some recordings commercially released and available on line. Since an artist can create good quality recordings in a home studio, and easily upload music for commercial release through any number of online distributors, any artist can make music and get it out to the public without the need for a major record label’s assistance. The labels actually want the DIY artist to develop its sound and test market itself. When there is interest from the public, numerous hits on an artist’s website or YouTube video, substantial sales of the artist’s music, and long lines at the live shows, then the major labels start sniffing around. The contractual downside of signing with a major record company is that in most cases their contracts assign ownership of your copyrights to them in exchange for funding (an advance and a promise of royalties); the DIY artist can retain ownership of its copyrights and then use and exploit them to generate income.

On the up side, as an artist these days you can make and distribute your own recordings on-line through the digital streaming services and promote the music through social media and with live performances - and keep 100% of the copyrights and 100% of the profits. In the "good old days" an artist needed a record company to fund the recordings in state-of-the-art recording studios and then print, warehouse and ship the physical records to stores. Before Spotify, AppleMusic and other digital streaming services, radio was the only gateway to the public, and you needed a record company to market and promote the music to radio.  You no longer need to go that route. You can do it yourself if you prefer.

If the DIY route is not for you, then you still need to do some legwork to get the attention of a major record company. What you as an artist need to do, first and foremost, is work on your art. That can be a combination of writing great songs, making great recordings, making interesting videos and creating a great live show – any or all of those things. You need to build your websites and develop your social media in order to link your fans to your work so that the public can hear your music and see your performances. An artist needs to create a “buzz”, create excitement and interest for what the artist is doing creatively. Some artists do it with a killer song and others do it with an interesting video. You need to create something unique and interesting that the public just cannot resist. It is not easy. It takes hard work and perseverance – and requires a little luck to get attention. However, if the alternative is to give up and go work in a grocery store or some other day job, then you might as well hone your craft and give it all you have to try to create something that demands that people pay attention. Then, if you want, you will get signed to a major record company that will, hopefully, help fund your expanding efforts and spread your artistry to a broader audience around the world.

Wallace Collins is an experienced entertainment lawyer. He was a recording artist for Epic Records before receiving his law degree from Fordham Law School. T: (212) 661-3656; wallacecollins@gmail.com