Frederick Livingston, Esq. / Blog

How to protect your investment when paying for a feature

As most artists know, getting an established or hot artist on your song can catapult you up the charts. But you have to make sure your contracts are right before paying someone a few thousand dollars for a verse or you may end up taking a loss. You always want to have a legally binding side artist agreement or feature artist agreement that is accompanied by a song split sheet. The side artist or feature artist agreement will set out the time and place for recording, the song to be recorded, the feature artist's contribution, and the payment terms. The Song split sheet will lay out the division of royalties from the song.

If the artist doing the feature is signed to a major record label or under contract with anyone, you should get a signed record company waiver. Depending on that artist's contract they may have a clause that allows them to record as a side artist without the express written consent of the label, but they may not. Whenever you're unsure, you should get the waiver signed, the last thing you need is to pay top dollar for a feature and not be able to use it because the label won't allow it.

Why do I need my name trademarked?

The Question... "My lawyer says that if I fail to trademark my band name, another band with the same name could trademark it and stop me from using it.  Then, I would have to repackage all of my CDs, and change the band name my fans are already familiar with.  What's more, the other band could even sue me for punitive damages. The cost to do a formal search is $500, the cost to trademark is $335, and my lawyer's fees would be $1000. That's a lot!  However, the potential risk of using the name without a trademark is significant.  What are your thoughts?"

Kenny's Answer.... Your attorney is correct.  However, I must add that, a band that co-exists with the same name must prove, legally or otherwise, that it was utilizing the same name *prior* to your doing so.

And, this is where the "otherwise" comes in, as proving such does not necessarily dictate that the competing band have its name formally registered in order to present you with a "cease and desist" order.

In fact, it can be as simple as the competing band having utilized its name for some time before yours and, as such, has achieved a certain level of name recognition and notoriety, whether on a regional, national or international level.

This is a major determining factor in a band preventing your use of its name.  Through the years, I have actually watched this unfortunate situation occur with several bands.

Also, many bands elect to wait until they have (hopefully) achieved some career milestones before registering and trademarking their band names.

This is not smart, particularly, if you are in this business for the "long haul," so to speak, and plan to have a long career with your act in the Music industry.

Just as you would not (hopefully) operate a business selling your CDs without a business license and (hopefully) would not forego filing your annual federal and state taxes, you should treat the trademarking of your band's name with equal seriousness.

Therefore, the best time to begin strongly considering protecting your band's name through trademark is as soon as you decide to definitely make Music your career.

Because, the absolute worst nightmare would be for you to become a national, or worse, worldwide success, selling thousands and, possibly, millions of units of your music, only to receive a legal notice that you must now change your band's name and all of its related content, as well as your possibly being sued for having used the name.

As for the cost to do a formal search being $500, the cost to trademark being $335, and your attorney's fees being $1000, would you rather take a chance on confusing and losing your fans five years from now with a forced name change and being sued for millions of dollars, or is paying the lesser amount of $1,835 now to eliminate the possibility of this nightmare starting to look a lot better?

Consider taking the time and money to trademark your band name as an investment and a bonafide security cost that protects you and your career for life.  And, after going through your trademark process successfully, and if you are, indeed, planning on a serious career in the Music industry, you may also wish to strongly consider incorporating your business as well.

What incorporation does, is take the burden off your personal assets as a possible loss, and limits the burden to only your business assets should you ever encounter and, unfortunately, lose a lawsuit.  For $2,500 (or less), you can sleep well every night knowing that you and your career are completely protected legally through your trademark and incorporation.

Trademarking your band name is just as serious as your copyrighting your songs.  And, I cannot conceive of any serious songwriter, musician or recording artist who has not invested the small $30 in order to protect his written or sound works, yet, has released a CD to the general public.

Courtesy of http://www.musicbizacademy.com/articles/klovetrademark.htm

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Upcoming Release Package - $ 750.00 Production Agreements Songwriter Agreements Song Split Sheets and Feature Artist Agreements Performance Rights Organization Registration (ASCAP/BMI) Copyright Registration Digital Distribution (songcastmusic or cdbaby) Pandora Registration Myxer (Ringtone) BDS/Mediabase Song Registration Package is for up to 15 songs. All songs must be registered with Copyright office, Distribution Company, and Performing Rights Organization at the same time.

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