Sunday, October 16, 2011

Seeking new music artist and bands for Management

Dark Moon Music is currently looking for new artists to fill our management roster.

Are you an aspiring Artist or Band with the talent and drive to succeed in today's music industry? Do you feel frustrated or confused and need help understanding today’s complex music industry while developing your career without breaking the bank? Do you want more realistic opportunities for you to make money from your music and gain exposure? Are you ready for Professional Artist Management?

We are looking to work with singers, groups and bands, in the age range of 13 to 40, that are as serious, committed, and passionate about music as we are.

Dark Moon Music Management provides industry-standard artist development, production, marketing, and management. Our approach incorporates all the most essential elements you need to become successful in the music industry. Whether or not you need an actual "manager" is not the question. You need to ask yourself if what you've been doing until now is not working, why not?

Dark Moon Music Management owner Jim Clark has more than 20 years of experience signing artists to major and independent record and publishing deals,

taking our artist and bands from the local to the national and international scene as a very successful entrepreneur in the music business.

You need knowledge and information to make the right choices and avoid the mistakes that many artists make. With my background in the traditional music business as well as my experience in today’s music business, and with the newest technologies, I can provide experienced insights with advice tailored to your exact needs to become successful.

Please submit a Press kit with your best music to us for consideration; even if it is only a rough demo, the artist is what is important to us. If you have a My space or Face Book send us a link or web address as well. We will contact you if we have an interest in adding you to our current roster of talented artists who are finding success in having Dark Moon Music help manage their careers on the local, national, and international music scene.

We provide them with the resources to ensure a long and prosperous career within the entertainment industry. We exemplify creativity, honesty, loyalty, and professionalism. We render all services promptly and with great attention to detail while maintaining a strong interpersonal relationship with our clients. We are dedicated and focused on the individual needs of our artists. We put them first in doing so; we always work tirelessly to help our clients reach their personal goal. As a professional artist manager, I am constantly looking for the next big star.

Our artists all benefit from our professional artist management and career development. We are looking for all genres as long as the music is innovative and fresh.

Please serious artists only. Send your Press Kit and music to:

DARK MOON MUSIC MANAGEMENT

3 Colonial Court

Barnegat, New Jersey 08005-1716

CODE OF ETHICS WE FOLLOW

A personal manager is engaged in the occupation of advising and counseling talent and personalities in the entertainment industry.

Personal managers have the expertise to find and develop new talent and create opportunities for those artists which they represent. Personal mangers act as liaison between their clients and agents, others in the entertainment industry, and the general public.

Personal Managers have knowledge of and experience in the many facets of the entertainment field. Personal Managers agree to use this specialized knowledge to guide, advance, and promote the careers of clients who retain the manager's professional services.

The personal manager agrees to:

Have as a primary occupation the management of entertainers, performing artists, and creative personalities;
Always deal honestly and fairly with clients;
Not derive personal gains at the expense of clients;
Treat relationships with clients in a confidential manner;
Not to encourage or induce an artist to breach an existing personal management contract; not to represent an artist while the artist is under a valid contract to another except by written agreement with all parties concerned.
Be proud of the personal management profession and Not to publicly or privately disparage a fellow Personal Manager
To the extent that it does not conflict with the best interest of clients, exchange information wherever possible and advisable with other Personal Managers.

Saturday, October 15, 2011

Music Business Interns Needed

Want to learn the music business - MUSIC BUSINESS INTERNS NEEDED

Dark Moon Music Management is gearing up for some expansion and looking to find the right intern or two or three to help us in the office and field. Dark Moon Music Management is currently seeking part time/full time interns for its NJ office to assist in our day-to-day activities

This is an unpaid internship for experience, credit (if you need it), and possible future employment. it is a good chance to learn the business end of the entertainment industry. We manage bands, solo artists, etc, offering professional artist management, marketing, and public relations. We also have an indie label record label Dark Emissary Records.

We would love to hear from you if you think you'd be a good fit and interested in the work we do. Email a cover letter (PLEASE don't be formal - be real and personable!), resume, and also your myspace or facebook link if you have one. We'll take all of it with a big grain of salt and we promise to follow-up if you sound like someone cool to work with. Whenever we post for an intern we get too many responses to get back to everyone, but we look over everything and follow-up with anyone we're interested in talking to more. It's based less on prior experience or quality resumes and more on how you present yourself and if you seem like someone who'd get something good from this, be successful in the music business industry, and give us some real help with our projects in return.
We want to give you hands-on experience in the music business and a chance to learn by asking questions, exposure to the terms and lingo, understanding of who does what and how things work in this business. In turn, we want you to be a valuable part of the team. We expect you to do reasonable amounts of work.. Sometimes the work will be monotonous data entry or web site research, but even then you're still getting exposure to the business of music….

The right person can get more done in a couple hours than the wrong person working a full day. It'd be good if you were a self-starter, organized, knew how to ask questions, can COMMUNICATE – verbally and textually, computer and Internet literate, trust-worthy, and most of all PASSIONATE about being in the music business. Seeing bands and visits to different venues could require travel and late night hours.

This IS a business so don't expect it to be just chilling' listening to music. We have a lot of work to do to help our artists succeed, to pull off our events, to promote and support all of our clients.

Your job will include the following:
- Answering the phones

- Coordinating tour work for our artist – in advance of shows (checking times and getting perfect directions), sending out press releases, etc.

Promoting artist online at Myspace and on message boards, along with communicating with fans around the world

- promoting other artists online and on message boards

- reaching out to artists to check out Dark Moon Music Management (email after email to good bands)

- Internet promotion for some hard rock artists/projects from our label
- … and anything else that comes up (including some non-music promotions coming down the pike possibly). From burning CD's to stuffing envelopes to searching out email addresses and creating tables in Word for lists of information we need.

Interns will be involved in the marketing, publicity, and management campaigns for our artists, including creating and compiling promotional materials, media/venue outreach, administrative duties, etc.

This is a great opportunity for someone seriously looking to gain knowledge and experience in the music industry.

IF YOU HAVE READ THIS FAR, then please send us your goods! I might quiz you on this stuff to make sure you actually read this listing. Please do not apply unless this is right for you. We want to give you your start or continued education in the music business. This is a midsize company – the boss Jim, and few assistants – we're very friendly but very serious about getting work done when necessary, in a casual atmosphere. Be the kind of person that wants to do more than they are asked and wants to really get involved in order to score points and create support/loyalty from us!

This is the kind of opportunity where you'll get out of it what you put in. if your from out of the area we may be able to provide room and board, if your willing to stay with Jim feel free to inquire. I love to give great references, but they need to be earned….. Oh and if you wish to inquire if we can manage your band that's cool. If you're in one, that's fine because you will learn much to help your group. While my plate is somewhat full I'm always open to looking at new artist and interested in right now in finding a good intern or apprentice to learn the music business!

Email: MasterofDemons07@aol.com

Place Music Internship in E-mail title

Musician Unions

The Unions

What are the musicians' unions?

The two major unions representing musicians are the American Federation of Musicians of the United States and Canada (AFM) and the American Federation of Television and Radio Artists (AFTRA). The unions comprise a network of local chapters that work together to improve wages and working conditions for musicians. AFM represents musicians, while AFTRA members are vocalists and actors.

The AFM is the largest musicians' union in the world, with members from all fields and types of music. Most musicians will join this union. The group negotiates and administers agreements with the major recording companies, film and television companies, live music venues and booking agencies, and so on. These agreements designate a basic union "scale" wage that the companies must pay to musicians at a minimum, and provide for employer contributions to the AFM health and pension funds. AFM membership benefits also include local job referrals for session and tour work; group insurance rates for health, life, dental and music equipment; and collection of unpaid wages owed to members. Visit the website at http://www.afm.org for more information.

You can contact the unions directly for information about dues, membership and benefits. The annual dues range from approximately $100-200 dollars per year, with a one-time initiation fee of $60-$100. Each local provides various additional benefits, depending on its membership and strength.

Disclaimer: I do not intend for this information to provide or replace professional legal advice in any way. This material is only intended to provide a short-answer reference guide to the basic legal and business practices associated with the music industry. In your own interest, you may want to consult with an attorney before entering any contractual agreement.

Management & Attorney's

Management and Attorneys

What do managers do?

A business manager supervises all your money. They make sure you get it, keep records of it, pay your expenses, invest it and do your taxes. If money means anything to you, it is very important to take your time finding a good business manager.

Be thorough in interviewing a manager and make sure you get one that has music business experience. They should also have more financial training than you. It is not always legally required for managers to be Certified Public Accountants or even state licensed. Don't be satisfied with short answers to your questions in place of detailed explanations. It is your money you should be fully informed in every aspect.

Prepare a list of questions to ask each candidate.

Some sample questions could be:

What percentage will they take for services rendered?
Do they want you to sign a contract? If yes, make sure you won't be legally bound to them for a long period of time without option to replace in case of a sloppy job.
Will you sign all the checks?
How often and what kind of financial reports will you get?
How do they feel about periodical audits?
How do they plan to invest your money? (ask for specifics, "we tailor to you"; is not good enough) If yes, do they receive kickbacks or "referral fees" for those investments?

A good way to find reputable managers is to ask around. Approach your favorite successful band after their show and talk to them about who they like. Word of mouth usually provides the best recommendation. If someone got burned they are definitely going to tell you about it. Although, double check someone that over hypes a particular person for any hidden agendas or personal gains.

When should we hire a manager?

Managers work for a percentage of your band's income. If you have no band income, you don't need a manager to do what you can do yourself. Develop a list of questions to ask when finding a manager. Determine how much money you earn, how much you can spend on a manager, what work needs to be done and how much time needs to be spent to get that work done.

If you are an indie band playing a couple nights a month for $50, divide your needs between band members. Use that $50 dollars on booking calls and promotional mailings. There are some advantages to DIY - do it yourself at first. You get a firsthand look at how the music business works, you control all your finances, and your proven track record gets you a better chance of getting a manager as you get more successful.

You could use a manager if your band is booked solid, pulling in a decent draw, and receiving money from each gig.

What are the common mistakes that artists make when looking for management?

There are many. These mistakes vary depending on how much the artist has accomplished so far. One example - the most common and disastrous mistake (that artists at every level make) is that they decide a manager's ability and worth is solely dependant upon the people they are connected to (other artists, business people). Able managers are of course connected to many other people, however, these connections and relations alone do not make said manager able.
Rather, what artists tend to overlook and not feel is important are some other factors such as: available time (all managers say they have this when they want a client, but only some actually do), willingness to be creative (which all managers will say they have, but few actually do), and a true understanding of that particular artist (again, they say they have it....). Now the artist's job is to find ways to determine if a manager truly has these things for them. Of course, you also want to temper these with experience and knowledge.
Artists (the newer they are, they more likely this happens) will always prefer a manager that has many gold, platinum or successful artists. The idea of this is fine, but they are blinded and distracted (like a child by a shiny object) by this to the extent that they ignore other factors that are of paramount importance as noted in the above paragraph. What happens then is that after this manager takes their 20% of the all the artists different advances and having paid them tens or hundreds of thousands of dollars, there will always come a day when time, creativity, and understanding are needed to keep a project alive. This manager then is unwilling or unable to provide these things since maybe they were lured to the artist for wrong reasons (such as a promise of advance money) and more importantly their time and energy are unavailable since their bigger artists will demand, require, and be given those things. To these types of managers, the new artist's failure is of no BIG concern to them.

The answer lies not in finding an unpracticed inexperienced manager who won't do this to you, but the answer lies with the manager that does have an available balance of time, experience, drive, and knowledge. There are many of these out there. The artist must be open-minded, but still mindful of a manager's motives. In the end it doesn't matter how much success or lack of it an artist has when selecting a manager, but what of the above factors are truly going to be preset in their relationship does matter.

What are some common managerial mistakes?

Well, a number of them are noted in the answer to the above questions. In general mistakes can happen anywhere. Like forgetting to check the accuracy of royalty statements as ancillary incomes (such as film and TV uses) are often not accurately reflected. Or not paying close enough attention to how every dollar is spent on the road because you can think you are spending wisely, but without extreme attention to detail (without sacrificing road members' sanity) costs can and will get out of your control and past your budget. Or simply being organized enough to return every phone call (even the ones you think you don't have time for because you do not know the person calling - but if you're organized enough, there is always time) because you can never know where an opportunity will emerge.

But many mistakes a manager makes are rooted in the fact that they make decisions to accomplish short-term gains. Now, not all decisions that accomplish short-term gains are mistakes, however, what's best for an artist's career requires avoiding an event or possibility that may earn some quick return or money right away, but may sacrifice an artists long term development. This is a bit vague, but an example of this: an artist is having success at radio, sales are big, things look great. But, when a record company continues to overexpose an artist at radio and also in the media, they can upset and alienate their core audience (which are the people you want to keep most happy since they will provide for you for many years). So rather than slowing down promotion for an act once they have reached , say, 2 million in sales or overexposure with a hit song at radio, managers tend to allow labels to pump this up to 4 or 5 million if possible, and thereby make everybody sick of that artist, alienating their core audience of 1 to 2 million, and having a dismal follow up record. Everyone wonders why the follow up only did a tenth of the previous, but I have just briefly explained why this happens. (One hit Wonders) Some managers will be unable to convince a label to slow down a bit and get to the next record sooner, but I think they fail by not trying.

Conversely, when a new artist is coming out, there is no story to speak of, and everyone is just trying to get on the map. The following sometimes happens: In the attempt to get started quickly, most of the available promotion dollars are spent trying to simply get a song on the radio. This is a problem if the song is not automatically a hit song, generating radio success somewhat on its own. Everyone thinks they have a hit, so they spend the money. This is a mistake. An alternate course of action is to save this money until an act can tour for 6 to 12 months first, before ever releasing a single, allowing a fan base to develop and also allowing that radio programmers, and media personnel are more likely to get involved since they have been hearing about the band (good things if the artist is good live) and maybe even had the chance to see the artist. Then there are much improved chances that radio and media will respond to a single, the promotion dollars are spent, and success is more likely. This is important because once a label spends the money they have allotted to promoting an artist and there is no successful return, that is when the project dies and the artist is most likely dropped.

When should we hire an attorney?

Before you sign any contracts or legal agreements, you may want to consult an attorney to discuss the terms of the documents. Music contracts are complex and they tend to favor the side of the deal that furnishes the contract. Ask an attorney to explain the terms of the contract to you and whether the deal offered is acceptable for your group. Your attorney can also try to negotiate any objectionable terms in the contract for you, which is far easier than trying to re-negotiate unfavorable terms after you have committed yourself. However, remember that your bargaining power is slim in the beginning, and your attorney cannot change that. What he or she can do is help you express what you want from the deal and keep you informed throughout the negotiation process.

Talk to your friends in the music scene to find out about a good local attorney, or call the local Bar Association for a list of attorneys who work in entertainment law. If you hear from another musician that you should not hire a particular attorney, find out why. Non-referrals can teach you about the problems to avoid in your relationship with your attorney. Don't be afraid to shop attorneys and to ask about their experience in this area, before deciding to hire them.

Getting Started in the Music Business - Basics & Trademarks

This is for the many bands that have asked for information or tips on how to get started. I hope its helpful to you. Jim

Getting Started in The Music Business

First Start by Reading as many books as you can about how the music industry works (knowledge is power). In addition many colleges and universities that offer music courses, the music business requires a lot of on-the-job training supplemented by your ability to teach yourself through reading. As you read, try to teach yourself the questions you would ask someone who seems to be interested in you as an artist. For example, if you are talking to a prospective manager, ask questions such as: what is your typical commission from my gross or net earnings? What other artists do you currently represent? Have you secured record deals for them? With what label? Do you have a publishing company?

Don't be afraid to ask tough questions of the managers, booking agents, publishers, promoters and others you contact, or who contact you. If a tough question scares them away, you probably wouldn't have wanted to work with them in the long run anyway. Remember: nothing is "free" in this business. If someone wants to pay for you to make a recording and doesn't first offer you a contract to review, then chances are great that recording will come back to haunt you later in your career. Never sign anything without first having your attorney (one who you find on your own and who you pay for yourself) review that contract first. If someone is "in a hurry" to have you sign something, chances are excellent that you might want to slow down.

Go out to hear live music as much as your time and budget permits. By watching professionals, you'll learn the do's and don'ts of live performance. If the opportunity arises, try striking up a conversation with members of bands while they are on break or after their show. You should begin to compile information on every live music venue in your area, and who is responsible for booking talent at each. Take advantage of every opportunity you can to perform. (Practice makes perfect, even if the type of music you're playing isn't exactly your first choice.)

How can I find musicians for my band?

Compose 25, 50 and 75 word descriptions describing your band to prospective musicians.
Create 5 by 7-inch index cards to put on bulletin boards. Music businesses that usually have bulletin boards include record stores, musical instrument stores, college and university music departments, and rehearsal studios.
Contact local weekly and monthly publications with music coverage to ask if they have a "musicians' referral" section in their classified ads.
Meet local musicians (on breaks or after shows; at music-related association meetings) to see if they need additional or replacement band members, or if they have any side projects.
Contact the local office of the musicians' union, the American Federation of Musicians (AFM)
Talk to local club booking agents.
Post a notice in on-line.

You should decide what type of business is right for our band?

There are three basic types of business entities: a sole proprietorship, a corporation and a partnership. Each business form has particular benefits and complications. An attorney or accountant can advise you on which organization best meets your current needs and how to make changes in your business as your career matures. Investigate these types of businesses and then seek professional advice when you are ready to begin setting up a business of your own. Here's a brief look at each type:

Sole Proprietorships

When one person owns and runs an unincorporated business, he or she owns a proprietorship. If you are a solo performer, the proprietorship is probably the way you will get started. No written documents are required to set up a proprietorship, other than the filing of your business name (if it differs from your legal name.) For information on filing a business name, check with your local county government. As self-employed persons, proprietors are responsible for all taxable income and debts of their businesses, as well as any problems that may arise.

Corporations

Your band may wish to form a corporation, which is a separate legal entity that is owned by the band members and any other person who owns shares in the business. The term "Loan-out Corporation" is sometimes used in the music business to refer to a business structure where the band forms a corporation to "loan-out" the band's services to promoters, record labels, publishers and so forth. The corporation signs all contracts for the band and the members all sign a deal to work for the corporation as employees.

The main advantage to incorporating is that you limit your personal liability for business-related matters. Because the corporation is a separate legal entity and signs the contracts, the corporation alone is liable for the band's business problems, and your personal assets are not at risk. You also cannot be sued for something stupid that another band member does, as is the case in a partnership. On the downside, incorporating your business will involve significant start-up costs, including state incorporation fees and attorneys' fees for preparation of the shareholders' agreement. Also, the federal tax procedures for corporations are more complicated than for other types of businesses. You can defray some of these costs by contacting a non-profit agency that helps artists sort out these types of situations. To incorporate you file "articles of incorporation" with the Secretary of State. This is a document that states the basic information about your new corporation; such as name, address, purpose, number of shares and so on. The fee is currently about $300 but varies by state. More information on the filing process is available through the Corporations Section of the Office of the Secretary of State.

Partnerships

A legal partnership is formed when two or more people work together as co-owners of a business for profit. "General Partnerships" are the simplest start-up organization for bands because they do not require any written documents or fees in the beginning. Once the band starts working together to make money, Texas law presumes that your group has formed a general partnership whether or not you have put anything down on paper in a written partnership agreement. Without any agreement, some standard legal conditions will apply to your band, including the following:

All partnership members are shared owners of the business, so everyone owns the assets and profits, and everyone is responsible for any losses. Examples of a band's assets include equipment and the band's name. Losses may include any debt you incur from tour expenses, equipment costs, and so on.
Every partnership member has the authority to act on behalf of the partnership, and the other partners will share the responsibility for that act. For instance, if a band member signs a commitment to buy the group a van in the band's name, you may all be responsible to pay for it, even if you never agreed to purchase a van.
Everyone is responsible if something goes wrong and the band gets sued. If a fan gets hurt at one of your shows because your singer flings a bottle into the audience, the injured person can sue the band as a unit or any one member, and each member may be liable for the damages.

By drafting a written partnership agreement, you can structure your partnership around some of these conditions. You can create an agreement that sets out the rights and responsibilities of each partner, but you are all still open to a lot of liability when something goes wrong. What you can do with a partnership agreement is avoid disputes among the members later on down the road.

Call a band meeting to discuss your group's partnership. When you have reached consensus on these issues, consult an attorney to draw up the partnership agreement. Here is a sample agenda:

Who will own the band's songs and name if the group breaks up or somebody quits?
Who is authorized by the partners to spend money or sign contracts on behalf of the group?
How much of the business assets and income does each member own?
Hold a detailed discussion of important points to include in a written agreement and customize the group's discussion to fit your situation

Variations on the business organizations:

There are some additional organizational forms that you should discuss with your attorney before setting up a business. Two possibilities are "Limited Liability Companies" (LLCs) and "Limited Liability Partnerships" (LLPs). To register an LLP or LLC in most states you must carry insurance for the business and file a form with the Secretary of State. LLCs offer the limited liability of a corporation, but may allow you to choose the simpler tax structure of a partnership. A "Limited Liability Partnership" (LLP) is a variation on the general partnership with all of its tax advantages, but in this form, the partners are not liable for any debts of the group. The cost is higher, but the fee is worth the peace of mind of knowing you won't be responsible for any liability that the group may incur.

Do we need to get a business license?

If you are working under a band or stage name, you need to file an "Assumed Name Certificate" (commonly called a DBA, for "Doing Business As") at your County Clerk's office. This certificate is like a business license, and it authorizes you to take important initial steps such as opening a bank account so you can issue and cash checks in the band's name. The fees vary from county to county, but are usually around $25.

For more information, see also:

Internal Revenue Service's Starting a Business at http://www.irs.gov/businesses/small/article/0,,id=99336,00.html
United States Small Business Administration's Startup Guide at http://www.sba.gov/starting_business/startup/guide.html

Taxes - we can't forget our partner the government

Do we pay taxes on the band's income?

Yes, the income earned by a band or solo musician is taxable. If you are a sole proprietor, you can use your own social security number and tax return to report your income and losses. Band members must get their business entity an "employer identification number" (EIN), which is like a Social Security number. The EIN works the same way for your business, and federal law requires all partnerships and corporations to use an EIN. Keep track of the group's income, expenses and losses. Once you have your EIN, you can report your taxes properly.

To obtain an EIN, contact the Internal Revenue Service and request form SS-4. You may complete the form online at http://www.irs.ustreas.gov/formspubs/index.html or send it by mail.

Order the form, a Business Tax Kit and/or other tax publications by calling (800) 829-3676, or write to:

Internal Revenue Service in your area check the phone book for a listing.

What tax procedures do we follow?

Your tax obligations will depend on the type of business you create. Sole proprietors report their business income on their personal tax returns, but they follow the small business accounting and reporting procedures. Sole proprietors may be required to pre-pay quarterly taxes based on an estimate of what they expect to earn, and they pay a self-employment tax which goes into the Social Security pool.

Partnership taxation is not very complicated because the partnership itself does not pay taxes. Instead, the individual members pay the taxes for the partnership's income on their own individual tax returns. This method is called "pass-through tax treatment", because the business profits and losses are "passed on" to the partnership members. The partnership entity files a "Federal Partnership Return of Income Form 1065". This is an informational form on which you declare each member's "distributive share" of the income or losses incurred by the partnership that year. Each member then reports his distributive share along with his personal tax return. Even if you think the band will probably lose money in the first few years, keep track of the losses and report them on the Form 1065. Ask your accountant or attorney if each band member can claim his share of the losses to offset taxable income from your day jobs. If you are eligible to claim the losses, you can use them to save money that you would otherwise pay in income tax.

Corporate taxation is too complex for the scope of this discussion, but you should understand the basic difference between partnership taxation and corporate taxation before you decide whether to incorporate your band's business. In a corporation, profits are taxed at both the corporate and the shareholder levels: the corporation pays taxes on its earnings, and then the shareholders are taxed on the dividends they receive. This system of "double taxation" may end up costing more tax dollars than the pass-through system for partnerships. Talk to an attorney or accountant about tax options and strategies for corporations before you decide whether incorporating is a useful move at your current career stage.

What tax forms should we use?

Each business type requires different tax reporting procedures. Consult an accountant, and research the state and federal tax laws for small businesses. There are no state income taxes in Texas, so you need only follow the federal tax procedures for your reported income.

The IRS produces a library of booklet-sized publications on business tax topics and distributes them free of charge. The publications cover all of the forms and tax regulations in detail, including accounting procedures, deduction categories, sample returns and so on. The list below will get you started, and check the IRS website for the whole library of topics. You may download these materials and all tax forms from the IRS business information web pages at http://www.irs.ustreas.gov/formspubs/index.html, or call (800) 829-3676 to request the materials:

Publication #334, "Tax Guide For Small Businesses"
Publication #541, "Partnerships"
Publication #542, "Corporations"
Publication #535, "Business Expenses"
Publication #583, "Starting a Business and Keeping Records"

Do we have to pay sales tax on merchandise we sell at gigs?

Yes. Most state laws require that you collect and pay sales tax on merchandise sold off the bandstand. Apply for a "Retail Sales Tax Permit" with the State Sales Tax Office in your area. Check the blue pages for the office closest to you.

Trademarks - Getting Started in the Music Business

What are trademarks?

Trademarks are symbols and/or words that are used to protect the identity of goods, such as name brand shoes (Nike) or food brands (Coke). Service marks are trademarks that identify the company or individual that provides a particular service, as with a travel agency or an entertainment group. As entertainers, musicians protect their trade names with a service mark so that other acts cannot perform under the same name. If your group also has a distinctive logo for T-shirts and other merchandise, you can trademark that logo as well.

You may apply to register your service mark either nationally, or statewide, or both. Register for the amount of protection your group needs. For example, if your group specializes in covers for local clubs and parties, then a statewide mark may provide sufficient protection. In Texas, you register with the Office of the Secretary of State, and the fee is $50. If your group is already touring outside of Texas and your ultimate goal is a major label deal, register with the U.S. Patent and Trademark Office. That fee is currently $335. For registration information with both agencies.

Will we lose our name if we don't register a trademark?

Not necessarily. In U.S. trademark law, you can "establish rights" in a name or symbol (the "mark") without actually registering a trademark. By just going out and using your band name for business purposes, you establish some right to the name as your "mark" if no other band is already using that name in your area. If your group is currently working under a fixed name but have yet to register a service mark, you may have already established rights in the name.

However, without registering your mark your rights in the name are limited to the territory in which the group is working. In effect, your group will be able to prevent another local act from using the same name. If a group starts playing under your name on the West Coast, you will have no right to stop them unless you can prove that your group used the name first in that region.

Under these rules, multiple bands can use the same name in different parts of the country without infringing on any other group's rights. The problem arises when your group gets a record deal and needs to sell albums in those areas where other groups are using the same name. If another band has established rights to your group's name in California and Oregon, they can prevent you from selling records under the name in those states. You would be forced to either buy out the rights in the name from the other band or pick a new name before the record can be released.

What if we find out that another group has a registered trademark for our name?

Most musicians would never dream that another group would own a trademark to their band's name. After the band builds up a fan base and signs a record deal, the record company is often the bearer of the bad news that the band's record can't be released because another group has already registered a trademark for the same name. If this happens to you, don't despair until you check out whether the other group is still together. The life span of the average band is short, and when a band breaks up and abandons its name, the name is fair game for anyone to use. If a group has not used its name for two years, it is presumed to have abandoned the name under the Lanham Act on trademark law.

The best way to avoid this problem from the beginning is to choose a unique name. No matter how creative you think the name is, remember that there are thousands of bands out there working. Choose something specific to your group or otherwise highly original. As soon as you decide on the name, start searching the market and the trademark libraries for any conflicting use of your name, and then register your trademark. (And do it early on so that you have the trademark settled when your group gets its first offer.)

You can pay the pros to search for you for a fee, or you can do the work yourself for free. Trademark professionals can complete a search within 24 hours for a fee of $300 to $500. Check the Yellow Pages for "Trademark Consultants and Searches." If you prefer to investigate yourself, start by browsing Internet search resources for any use of your name or the Billboard lists of touring groups and other such print publications. Comprehensive music search databases such as The All Music Guide at http://www.allmusic.com and the Internet Underground Music Archives at http://www.iuma.com can also be helpful. You may want to try Google, a multi-engine search mechanism at http://www.google.com to search for any use of your band's name in newspaper articles, press releases or anything else that is traceable on the web. These resources are a good place to start because they include both registered and unregistered band names that are currently in use. If you do not uncover any conflict, begin a search of registered marks. For a search of statewide marks, contact the Office of the Secretary of State. Search federally registered marks by visiting the Patent and Trademark Depository libraries. You must come in person to search. You can now research whether or not your band/company name is available to be trademarked by accessing TESS, the Trademark Electronic Search System, at http://www.uspto.gov/main/trademarks.htm

Or, you can search federally registered trademarks at the following Patent and Trademark Depository libraries (searches must be done in person; this system does not include state, international or unregistered marks):

Washington, DC: The Trademark Register
(202) 347-2138

How do we register our trademark?

For a nationwide trademark, order an application from the U.S. Patent and Trademark Office (PTO) by calling (703) 308-9000 or (800) 786-9199. Ask for their brochure entitled, Basic Facts About Registering a Trademark, or download it from the PTO web site at http://www.uspto.gov. The brochure includes the application forms and all the necessary information on registering your service mark and/or trademark. The application must include: a drawing of the word or symbol being trademarked; three examples of its use (such as newspaper clippings or a press release); the completed application form; a self-addressed stamped envelope for return receipt of your serial number; and the $325 fee.

Note: While you are waiting for approval of your mark, document your use of the band's name through club listings, advertising, and any other evidence of your usage. Keeping a record will help you establish your rights in the name prior to official registration.

Getting Started in the Music Business - Copyrights

Understanding Copyrights

What are copyrights?

Copyrights are protection under the federal Copyright Act for "original works of authorship," such as literary, musical, graphic and technical creations that are "fixed in a tangible medium of expression." Copyright Law recognizes that your creative work is your personal property, and like other kinds of property, musical works are protected against theft and unauthorized use.

There are two types of copyrights for musical works. The first right is in the underlying composition of the song, such as would appear on sheet music. The second copyright is in the actual version of the song that is recorded on tape. If your song is "covered" by another group, you can still own the rights to the song itself and your recorded version(s), while the cover group can register a copyright for their recording of your song.

When you own the copyright to a song, you get the exclusive right to use the song in specific ways and to license others to use it. These "exclusive rights," as provided by the Copyright Act, include the right to:

Reproduce copies of the songs in tapes, CDs, and other audio recordings
Sell and distribute copies of the songs
Publicly perform the songs- as in live performances, radio broadcasts, jukeboxes and digital audio transmissions
Create "derivative works," or adaptations, based on a copyrighted song, such as sampling the song or writing a parody on the lyrics.

How long do copyrights last?

For any work created since 1978, the duration of a copyright is the life of the author plus 70 years. For co-authored songs, the copyright lasts until 70 years after the death of the last surviving author. When the copyright period ends, the songs enters the "public domain," which means anyone may use the song for free.

If our band co-wrote all the songs, who owns the copyrights?

When two or more people co-write a song, they are "joint owners" of a "joint work." Unless you agree otherwise, each joint owner is an owner of the entire copyright in the song. All joint owners have full claim to the "exclusive rights" that come with the copyright, as listed in What are copyrights?. so long as they share any proceeds with the other owners. For instance, one joint owner can record his own version of the song and sell it without asking the other owner's permission, as long as he splits the royalties with the other joint owner.

How can I obtain copyright protection for my songs?

You do not have to register a copyright with the Library of Congress to acquire copyright protection for your song. Once an author fixes his music in some physical form, a copyright is created instantly so that the songs are legally protected. For example, when you put your songs on tape for the first time, you acquire copyright protection in both the songs and in that recorded performance of the songs. Similarly, when you write the songs down on paper, you acquire copyrights in the compositions.

If someone tries to copy one of your songs, however, a tape alone won't prove your copyright ownership. One cheap way to protect your copyright is to mail yourself a copy of the tape, including a lyric sheet, and do not open it. The sealed, dated package is proof of your authorship and the date when you created the work. This method is called the "poor man's copyright", and it provides some evidence of your ownership, but no legal guarantee. Use this method only in the time between the creation of the work and mailing your application to the Library of Congress.

Registering your copyright with the Library of Congress is a legal formality, but it is the only way to ensure the reliability of your copyright. The registered copyright establishes a public record of your ownership, which is conclusive evidence in court if anyone ever infringes your copyright. You cannot file an infringement lawsuit until you have registered your copyrights, so do it early on. Also, if you register your copyrights within three months of the time that you first publish your songs, you will be eligible for further legal advantages in the event of a lawsuit, including reimbursement of your attorney's fees and special damages.

How do you register a copyright?

The Library of Congress handles all copyright applications through the Copyright Office. The office operates a 24-hour answering machine on which you may request the appropriate forms at (202) 707-9100; or, download the forms from the Copyright Office web site at http://www.copyright.gov/forms/. The forms for song registration are Form PA (Performing Arts) and Form SR (Sound Recording).

Form PA is used to register a copyright in the underlying musical composition, rather than a specific recording of that music. Songwriters and composers who are interested in licensing their compositions for other people to record use Form PA. Form SR is used to register a copyright in a sound performance of a particular composition. Most bands will want to register their copyrights in both the compositions and the recordings. If the song is an original and the same person(s) will own the copyrights to both the recording and the underlying composition, you may register your authorship of both copyrights in one filing with Form SR.

This stuff gets complicated, but the Copyright Office publishes several excellent informational circulars to help you maneuver through the registration process. Before you submit an application, order copies of the circulars or download them from the web site. These circulars will answer most of your initial questions concerning which forms to use and how to use them:

Circular 1, "Copyright Basics"
Circular 56, "Copyright Registration for Sound Recordings"
Circular 50, "Copyright Registration for Musical Compositions"
Circular 56a, "Copyright Registration of Musical Compositions and Sound Recordings"

When you submit your registration forms, you must include the proper form, the filing fee (which is currently $30 per song; increasing to $45 July 1, 2006), and a non-returnable "deposit", or copy of the work, such as sheet music or a cassette, and a lyric sheet.

Should we register every song or the whole tape?

You can save the multiple filing fees by submitting a whole tape of unpublished songs together for registration as a "collection" with Form PA. With this method, each song is protected as a part of the collection. However, you may only do this if the same person or people authored every song in the "collection" so the copyright ownership is clear. This works fine if one person wrote the music and another wrote the lyrics to each song, or one person wrote the whole group of songs. However, you may not register the songs together if one band member wrote three songs on the tape, and another person wrote three songs, because the copyright claimants would be inconsistent.

When you register a collection, it gets catalogued under one name rather than listing the individual songs. There is nothing wrong with this, but if anyone ever searches for the copyright to one of the songs on the collection, they will need to know the name of the collection. You make money when people use your music, so you don't want to make it too hard for them. When you fill in the name for the collection, keep it simple and recognizable, such as "John Doe Collection #1".

Do we need to use a copyright symbol on our tapes?

Anyone claiming copyright to a work may use the copyright symbols, whether or not you register that copyright. In music, the © symbol is used for the copyrights in the songs, while (p) is used for the sound recording copyrights (to prevent unauthorized dubbing.) The symbols are not required, but use them to let the public know that the material belongs to you and is protected by your copyright. You can put the symbols on the label or the outer packaging, and they may be printed or handwritten.

Many bands will use both symbols to reflect that they are claiming rights to the original compositions and all of the recordings on a record. The notice must include the symbol(s), the year of publication and the name of the copyright owner. Here is an example:

What is copyright infringement?

Whenever someone exercises one of the exclusive rights in a song without a license from the copyright owner, he or she has committed copyright infringement. The infringement can be a complete rip-off of another artists' song or it could be a more minor incident of misuse, such as sampling part of a bass track without permission. Bootlegged tapes are an example of copyright infringement because only the copyright owner can make copies of a copyrighted work. If a bootlegger sells his dubbed copies, he has also infringed on the exclusive right of distribution. In any case, the costs for infringement are high- including statutory fines, court-ordered judgments and attorneys' fees. You can avoid committing infringement by making sure that you have the proper licensing to cover or sample any song before you use it.

If you think someone has infringed on one of your songs, you can sue for copyright infringement if you have registered your copyright, or as soon as you do so. To win a claim of copyright infringement, you must prove that the alleged copier could reasonably have had access to your material before he made his own song, and that the two pieces of work are "substantially similar" enough that the average listener would suspect copying. The infringing party will then try to prove that he created the song independently, and/or that the similarity is either a coincidence or too inconsequential to matter. You do not have to prove that the alleged infringer intended to copy your song. Anyone can claim that he did not mean to copy another person's work, so the law holds a plagiarizer responsible for infringement even if he didn't copy the song on purpose.

A classic example of such a case is the lawsuit against ex-Beatle George Harrison by the copyright owner of the old Chiffons hit, "He's So Fine." Harrison and Billy Preston were jamming backstage in the 70's when they created the song, "My Sweet Lord." They claimed that they did not mean to copy the tune of "He's So Fine;" they just hummed the riff and improvised on it without realizing that it resembled another song. Both parties agreed that the two melodies were substantially similar, and Harrison could reasonably have had access to the Chiffons hit in 1963, when it was #1 in England. Harrison's argument that he didn't do it on purpose did not carry any legal weight, so he had to pay a large chunk of his royalties from "My Sweet Lord" (which were in the millions of dollars) to the copyright owners of "He's So Fine."

How can I get permission to "cover" a song?

To "cover" a song, you must obtain a "mechanical license" from the copyright owner. A mechanical license is a clearance to reproduce and distribute copies of the song, which are among the exclusive rights that come with copyright ownership. You may contact the copyright owner directly and negotiate a mechanical license. Even without the permission of the copyright owner, you can obtain a "compulsory mechanical license" under the Copyright Act.

The copyright law provides that every copyright owner has the right to "first use" of his song; after that, anyone may obtain a license to use the song. "First use" is satisfied when the song is first recorded, copied and distributed to the public. This way, the copyright owner gets the chance to release the first public version of his song. After that, the copyright owner must issue a license to anyone who wants to use the song, either directly or through a "compulsory license." The person using the song pays a set fee to the copyright owner. The mechanical royalty rate is set by the Compulsory License Provision found in Section 115 of the U.S. Copyright Act; for the period January 1, 2004 to December 31, 2005 the statutory mechanical rate is 9.10 Cents for songs 5 minutes or less, or 1.75 Cents per minute or fraction thereof per unit sold - whichever is greater.

Because the compulsory license procedure is complicated, copyright owners generally issue the licenses directly to the users and let the Harry Fox Agency in New York negotiate the fees and collect the money. The statute is still important because the statutory royalty rate sets the industry standard.

Do I need a license to sample a track?

Yes, you must obtain a "clearance," or copyright license, for every sample that you use in your recordings. Unlike musical compositions, there is no compulsory license that lets you use any recorded performance. You must get a license from the copyright owner directly and negotiate a fee. Also, because both the composition and the sound recording are used in a sample track, you must obtain two clearances: one from the owner of the copyright in the song, and one from the owner of the rights to the sound recording. This may or may not be the same person or company.

The clearance protects you from copyright infringement and from being hit with a lawsuit from your record label. Record contacts have standard "warranty clauses" where you promise to produce material that does not infringe any copyrights. This is because the record company makes copies and distributes them for sale, which are exclusive rights belonging to the copyright owner. When the company sells your records with unauthorized material, it is infringing on the author's copyrights and will probably get sued. The company will then turn around and sue you for breaching your warranty clause.

Clear your use of any sample before you spend a lot of money on recording so that you don't spend studio time on a song that you cannot sell. Follow the instructions listed in here in " How do I obtain a license to use copyrighted music?" to find the copyright owners and get a clearance, or contact one of the agencies that specialize in music licensing and clearances, called "clearance houses." The sampling fees vary, depending on how much of a song you want to use and how important the song or performer is, so a professional may be able to negotiate a better fee for you.

Bug Music
1776 Broadway Suite 1708
New York, NY 10019
(212) 765-2172
http://www.bugmusic.com
Copyright Management Inc.
1102 17 th Avenue South, Suite 400 Nashville, TN 37212
(615) 327-1517

Suzy Vaughan Associate
6848 Firmament Avenue
Van Nuys, CA 91406
(818) 988-5599

Can I really use eight notes from a song without a license?

Probably not. Many musicians believe that they may sample 4, 5 or 8 notes or bars of music without infringing any copyrights, but this is a myth. This common belief is due to the "fair use" doctrine of copyright law, but the doctrine is too complicated to break down to a specific number of notes. "Fair use" allows copyrighted material to be used in situations where a minimum of the material is used in a reasonable way that is not harmful to the owner's rights. For example, a journalist may quote an excerpt of your copyrighted lyrics in a printed review of your record without infringing your copyright.

The legal test of "fair use" is beyond the scope of this discussion, but bear in mind that just four notes from a sound recording can be substantial enough to raise questions of infringement. Consider the theme from "Jaws," where four notes are widely recognized as the theme to a classic movie. Sampling those particular four notes may seem like a stronger case for infringement than lifting four notes from the bass track of some obscure funk tune, but either situation could result in a copyright infringement suit. The only way to be sure that you are not infringing any copyrights is to get the proper clearances before you use any samples for commercial purposes.

How do I obtain a license to use copyrighted music?

1. Determine as much as possible the exact song title, songwriter, music publisher, and performing rights organization for each song you are interested in using. Most CD booklets or cassette j-cards include some—if not all—of this information. Get as much of this information for each song prior to calling BMI or ASCAP.

2. Contact the appropriate performing rights organization to get the name, address and phone number of the publisher who controls the copyright to the music you are interested in using.

Index Clearance Section - ASCAP1 Lincoln Plaza, New York, NY 10023
(212) 621-6160

Research and Information Department - BMI320 West 57th Street, New York, NY 10019
(212) 586-2000; fax (212) 956-2059

3. Contact the publisher to obtain permission. Get the name of the person you talk with. Tell them you seek to obtain a mechanical license for a song or songs they control. Follow-up with a letter, and make sure you receive written permission before proceeding.

4. In addition to gaining the permission of the publisher, you must also receive permission from the record label on which the song was released (and occasionally the artist who recorded the song) if you are using a commercially released recording of a particular song. The Texas Music Office has several reference books that list contact information of artist management companies and record labels. Please contact us for additional information.

5. If you are recording songs for commercial release, you are required to obtain a mechanical license from the publisher. (If you are using a song for a film, television show or commercial advertisement, you are required to obtain a synchronization license from the publisher.) The mechanical royalty rate is set by the Compulsory License Provision found in Section 115 of the U.S. Copyright Act; for the period January 1, 2004 to December 31, 2005 the statutory mechanical rate is 8.50 Cents for songs 5 minutes or less, or 1.65 Cents per minute or fraction thereof per unit sold - whichever is greater (after January 1, 2006, the rates will be 9.1 Cents and 1.75 Cents respectively). The Harry Fox Agency, a subsidiary of the National Music Publishers Association, is available to grant mechanical licenses for its almost 28,000 publisher clients. For more information, contact:

Harry Fox Agency711 Third Avenue, Eighth Floor, New York, NY 10017
(212) 834-0100; fax (212) 953-2384

See ASCAP's Music, Money, Success and the Movies for legal info on music in films.

How do I research who owns a copyright?

1. The Copyright Reference and Bibliography Section at the Library of Congress Copyright Office can research the copyright status of a song. The more detailed information you can furnish with your request, the less expensive the search will be. Please provide as much of the following information as possible:

The title of the work, with any possible variants
The names of the authors, including possible pseudonyms
The name of the probable copyright owner, which may be the publisher or producer
The approximate year when the work was published or registered
The type of work involved (musical composition, sound recording, photograph, etc.)
For a work originally published as a part of a periodical or collection, the title of that publication and any other information, such as the volume or issue number, to help identify it
The registration number or any other copyright data

Motion pictures are often based on other works such as books or serialized contributions to periodicals or other composite works. If you desire a search for an underlying work or for music from a motion picture, you must specifically request such a search. You must also identify the underlying works and music and furnish the specific titles, authors, and approximate dates of these works.

2. Files are subdivided by "year period". Records begin in the year 1790. The card catalog filing system began in 1870. Recent year periods for songs include 1955-1970, 1971-1977, and 1978-1993.

The Copyright Office published the Catalog of Copyright Entries (CCE) in printed format from 1891 through 1978. From 1979 through 1982, the CCE was issued in microfiche format. The catalog was divided into parts according to the classes of works registered. Each CCE segment covered all registrations made during a particular period of time. Renewal registrations made from 1979 through 1982 are found in Section 8 of the catalog. Renewals prior to that time were generally listed at the end of the volume containing the class of work to which they pertained. A number of libraries throughout the United States maintain copies of the Catalog, and this may provide a good starting point if you wish to make a search yourself.

There are some cases, however, in which a search of the Catalog alone will not be sufficient to provide the needed information. Because the Catalog does not include entries for assignments or other recorded documents, it cannot be used for searches involving the ownership of rights. The Catalog entry contains the essential facts concerning a registration, but it is not a verbatim transcript.

3. Upon request, the Copyright Office staff will search its records at the statutory rate of $80 for each hour or fraction of an hour consumed. Based on the information you furnish, they will provide an estimate of the total search fee. If you decide to have the Office staff conduct the search, you should send the estimated amount with your request. The Office will then proceed with the search and send you a typewritten report or, if you prefer, an oral re-port by telephone. If you request an oral report, please provide a telephone number where you can be reached from 8:30 a.m. to 5 p.m., eastern time.

The search fee does not include the cost of additional certificates, photocopies of deposits, or copies of other Office records. For information concerning these services, request Circular 6, "Obtaining Access to and Copies of Copyright Office Records and Deposits.

Your request and any other correspondence should be addressed to:

Library of Congress Copyright Office, LM-451
101 Independence Avenue, S.E.
Washington, D.C. 20559-6000
Tel: (202) 707-6850 Fax: (202) 707-6859
http://www.loc.gov/copyright

If you wish to do your own searching in the Copyright Office files open to the public, you will be given assistance in locating the records you need and in learning procedures for searching. In addition, the following files dating from 1978 forward are now available over the Internet: COHM, which includes all material except serials and documents; COHD, which includes documents; and COHS, which includes serials. The Internet site addresses for the Copyright Office files is http://www.loc.gov/copyright