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Interview - Aug 1, 2003

“All “unsolicited” means is that the recipient has not agreed to receive the material.”

picture John J. Tormey III, Esq. is a music and entertainment lawyer with his own practice in New York. In this three-part interview, he talks in great detail about the legal issues many artists encounter during their careers in the music industry. Part 2 deals with a wide range of topics, including how music business attorneys can help artists, whether attorneys can act as managers, what a band member agreement ultimately boils down to, the process of copyrighting works, and more.

DISCLAIMER: Neither this interview nor any part of it is intended to constitute legal advice with respect to any particular situation or fact pattern. Secure counsel promptly, if you see any legal issue looming on the horizon which may affect your career or your rights. What applies to one context, may not apply to the next one. Make sure that you seek individualized legal advice as to any important matter pertaining to your career or your rights generally.

Other than reviewing record label contracts and shopping music, are there other areas in which an attorney might help an artist?

There are an abundance of things, and the list grows every week.

In terms of general philosophy, artists can contact a lawyer either: (A) before the fact; or (B) after the fact.

Contacting the lawyer before the fact is the “ounce of prevention”/“stitch in time” approach. I like that one.

Contacting the lawyer after the fact is what I refer to as “damage control”, or, in film fan parlance, from La Femme Nikita/Point of No Return, the Harvey Keitel/“Victor The Cleaner” solution. I get those, too.

As far as I'm concerned, although I’m obviously biased in this regard, the earlier the better. Perhaps the attorney’s most important function is to help artists avoid pitfalls. I make no claims to prescience or extra-sensory perception—but the fact is, I see things coming. I have worked with many clients, and I have worked through many fact patterns. The most rewarding thing I can do is help a client avoid a pitfall that I once saw someone else suffer.

Much of the advisory work that entertainment lawyers handle transcends material-placement projects and contractual work. One of our essential functions is to warn, as well as to guide. But how can we warn when it has already hit the fan?

The lawyer can be a real ally to the artist, especially in the area of developing a new business or a new property. Creating and filing a limited liability company or “LLC”, and searching and clearing a new business name trademark, for example, are tasks that should be done correctly, and only once.

A lawyer’s input might be valuable during the copyright registration procedure because, even though the U.S. Copyright Office has developed the registration system with the layperson in mind, I have seen numerous cases where those layperson-registrants make colossal mistakes, which are often difficult and expensive to rectify. Every working artist should have an entertainment attorney accessible to them, at the very least for intellectual property advice.

There is much more to transactional legal work than “reviewing” a contract. That word sells us short. In 99% of cases, a “review” alone would be insufficient. An artist should never go to an attorney if all the artist wants is a rubber stamp that says “yes, go ahead and sign” on a first-form document offered by a label or a publisher. After all, those forms are euphemistically referred to as “F.U. forms” for a reason. No right-minded attorney would put his or her license at risk by rubber-stamping such a form as “approved for signature”.

Contract work includes drafting, editing, red-lining, and negotiating, and often requires a duly diligent inquiry into the client’s business before any paper is signed. The art of red-lining, for example, is the art of showing the other side of the negotiation the editing changes that you have made to their last form. This is how real negotiations happen.

Your question also brings up another good point. As I indicated above, legal services are a resource, and should therefore be used economically. Many fail to deploy legal services in a timely way—that much is obvious. But there are cases in which the artist may also become overly dependent on the attorney for advice on issues that stretch the boundaries of legal work, perhaps because of an age difference, perhaps because of the attorney’s experience in the relevant field of entertainment, perhaps simply because the attorney is bright and has some interesting things to say.

Regardless of the reason for it, being too dependent on a lawyer is a bad thing. It makes the attorney nothing more than an expensive friend. The smartest thing that an artist can do is use an attorney wisely and prospectively for any matter which stands to have a significant impact on the artist’s business, career or legal rights.

Do you accept unsolicited material? If so, what factors do you consider when listening to submissions of this kind?

No, I do not accept material that is sent to me unsolicited. The same is true for many labels, publishers, studios, TV companies, and others.

However, all I require is that an artist who is interested in material-placement work first contacts me with a query (typically, an e-mail, in this day and age), and then receives, reads and responds to my Submission Guidelines. The Guidelines spell out in detail how submissions should be made to me. The rules are easy. For placement work, I always defer discussion until after the Guidelines are read, and after the submission is made. After all, there’s really nothing to talk about until I hear the music or otherwise review the material.

All “unsolicited” means is that the recipient has not (or has not yet) agreed to receive the material. Therefore, the simplest way to remove that “unsolicited” stigma is to ask the recipient if the recipient is willing to receive it.

What factors do I consider when listening to a demo CD? Well, a number of things, but the list includes:

(A) “How will an A&R executive react to this material?”
(B) “Can I imagine this music being played on the radio as it is recorded and, if so, on what radio station(s)?”
(C) “Do I think this music has a realistic chance of commercial success?”
(D) “Can I send this material out to an A&R executive that I know, under my signature?”

And, last but not least,

(E) “Is this artist someone with whom I can work, as a client?”

Do you offer shopping services? What is your experience of shopping material? Do A&R reps generally trust attorneys to come up with hot material?

Yes, I handle that kind of work. I typically refer to it as “project placement” work, rather than “shopping”, because I think the former is more accurate and sounds more dignified.

I’ll approach any person or entity that the client believes could further the client’s interest in placing material. Typically, a music client with material will want to approach record labels directly, whether they are majors, minors, independents, etc. There are cases in which a musician with material might want me to approach a music publisher, manager, producer, or even a famous artistalthough labels are a more frequent target.

As I indicate in my Law Practice Statement and Submission Guidelines, the artist should be prepared for a speculative endeavor, wherein success or even satisfactory response to the material is by no means guaranteed, even if the queries and submissions are made through an entertainment lawyer. The main reason to submit material through an entertainment lawyer is because many labels, and other entertainment companies, require it. Period. Labels may well believe that artists who go to the trouble of seeking counsel for material placement, must by definition be more serious about their musical careers.

For example, I believe that most A&R reps with whom I communicate know that I only end up taking on a minority of the placement material initially forwarded to me. I believe that these A&R reps are glad to hear from me when I contact them with new material a second time or repeatedly, because that’s what they tell me. But I can’t speak as to what these A&R reps think about other lawyers, since I’ve never really asked. I only care about my own ability to get through the gate for the benefit of my clients.

Have some sympathy for those who work at entertainment companies; I do, because I did. These folks are absolutely inundated with queries and material. They accordingly set filters, much like e-mail spam filters, designed to filter out the worthless from the worthwhile. Admittedly, like e-mail spam filters, sometimes the A&R filters don’t work. There are “false positives” and there are “false negatives”. Sometimes, worthy inquiries are rejected. Sometimes, worthless submissions get through the gatekeeper, and sometimes even get signed!

It’s not fair, but it is what it is. Don’t fight it, and play by their rules unless you want to self-distribute. If one of the filters the label imposes is that all submissions should be made through an entertainment lawyer, then get one.

As for which individual to target with a query or submission, it depends on the artist, the material, the label, and other circumstances. Naturally, you try to seek out persons with whom you have had favorable results or contact in the past. But new labels develop constantly, and people in entertainment companies seem to change jobs constantly. The key is to update your research on the chain of command within the label, shortly before making the inquiry.

Often, shooting too high or too low leads to adverse results. Besides careful forethought, a certain degree of timing and luck is also involved.

Can an attorney act as an artist’s manager at the beginning? Is it advisable?

Yes, an attorney can; and no, in my view it is not advisable.

Remember that an attorney is always an attorney, no matter what other moniker the attorney might adopt. A lawyer might market himself to bands as an “impresario”, but that lawyer would still be governed by the rules of the Bar no matter what. To me, “attorney” or “lawyer” trumps all other titles. If a lawyer introduces himself as a “manager”, I would treat him as someone introducing himself to me under an alias. Thankfully, most lawyers realize the importance of identifying themselves as members of the Bar early in the discussion. After all, it is only fair to advise the other party of that fact as early as possible; otherwise, the lawyer would be maintaining a silent and unfair advantage.

Additional self-styled titles regardless, the attorney is still accountable to the Bar, the Canons of Ethics, and the laws governing attorney conduct. If the lawyer wants to keep his or her license, he or she must still abide by those rules, even when acting as a manager. I tend to prefer people who call themselves what they are.

“Manager” tends to imply that the representative is working on a contingent fee basis. My previous answer to the question “An artist pays an attorney…” (Part 1) spells out my concerns about these types of arrangements, and why I avoid them.

The more interesting distinction to me is between “agent” on the one hand, and “manager” on the other. Recently, this has been a burning issue in the area of author representation in California. In the music business specifically, the role of the manager can become quite extensive and important to an artist’s career. It really depends on who that manager is. There are some great (non-lawyer) managers out there, and you can usually tell who they are because their client rosters are already full!

At what stage should a band formally agree on how responsibilities and earnings should be divided? Are there standard contracts for this? What are some of the issues that should be dealt with in that agreement?

As early as possible! Please see my article, The Written Agreement Amongst Band Members (“AABM”). This article does underscore how important that proverbial “ounce of prevention” really is. Artists (and others!) are often all too willing to leave problems for a later day, in the hopes that the problems will go away. But this is totally contrary to my own personal philosophy. My own personal philosophy is “Confront problems now—solve them now”. A small bit of smart drafting can spare you a lifetime of litigation.

No, I would never concede that there is a “standard” contract for the AABM. Indeed, I don’t think there is a standard contract for virtually anything. When someone gives you a form and says it’s “standard”, they're telling you that they are trying to take advantage of you because they think you are a hayseed.

Every fact pattern is different, every band is different, and every deal is different. Basically, every band is a de facto partnership unless defined otherwise in writing by one or more band members. In this regard, the band is much like any other partnership or business organization. Anyone who reads Professor John C. Coffee Jr.’s book on business organizations (one of my favorites from law school) will tell you that most co-ventures boil down to 2 main issues: (A) ownership; and (B) control. “Who owns what?” “Who controls what?”

Clearly, who should pay certain expenses, and when, are big issues in any business start-up. And for the optimists (most bands are, as am I), the question of who receives what profits and when is also important. So is the band/name trademark. But this represents just a smattering of the issues that should be dealt with in any AABM. To show you in full detail, I’d have to first investigate your own band’s fact pattern and past documents, and then draft one for you.

Who owns the rights to a band’s name? Whoever came up with it? Whoever is exploiting it? At what point should one apply for federal trademark protection? What does it mean that the band name is automatically trademarked as soon as the band has made a public performance?

I think there are too many embedded assumptions in these particular questions—so please don’t rely upon those assumptions, particularly not the assumptions embedded in the last question. A band name is not necessarily “trademarked” as of the date of their first public performance. Furthermore, I wouldn’t even suggest using “trademark” as a verb, out of concern that this might confuse people.

Trademark law is complex and not easily explicable in the context of a short article or interview. Basically, in the U.S, there are two principal ways to establish a trademark and trademark protection. One is by “common law”, and the other is by state and/or federal registration. In recent years, the U.S Patent and Trademark Office (PTO) has allowed pre-use filing of a trademark under certain circumstances, the so-called intent-to-use or “ITU” filing.

Yes, trademark rights may be acquired by use alone, but (a) sometimes “use alone” is not enough, and (b) sometimes the user fails to properly document the use as part of an aggressive trademark protection plan. One can consider trademark registration if one knows that the intended name is clear or reasonably clear, but one needs to be careful. A professional trademark search for this purpose may be expensive, and a trademark contest before the PTO arising out of a trademark registration may be even more expensive.

Due to these perils and expenses alone, most bands skip the step of trademark registration. I’ve heard that over 80% of U.S. trademarks are not registered. In a perfect world, I suppose all valid trademarks would be registered, but this world isn’t perfect.

As for “who owns the band name?”, it depends upon the fact pattern and the text that is in the related documents. Even then, the answer might not be clear. Band members have litigated for years on end, running through millions of dollars in litigation fees, to try to find out.

My point is spend the money and time now and map it all out in a signed agreement like an AABM. A signed agreement is your best shot at avoiding a dispute later on.

Why did the “poor man’s copyright” go out of practice, or has it? What does the fact that I automatically own the copyright to my work as soon as I have given it “a tangible medium of expression” actually mean? If I just record my song on CD at home and nobody knows anything about it, how can I ever prove anything, including the recording date?

People still mail their work to themselves, I suppose, but I don't think it's even worth the price of a stamp. For more on this topic, including the significance of “tangible medium of expression”, please see my article on copyright registration.

The fact is that, when executed properly, the U.S. Copyright Office registration procedure should give you much U.S.-oriented protection as you will ever need. Of course, there are other important steps too, like maintaining an access log, and labeling work with proper copyright notices. Certain situations require more aggressive copyright protection measures, such as “cease and desist” demand letters, and litigation.

If the “poor man’s copyright” has fallen out of favor, it is probably because anyone with Internet access these days can surf the U.S. Copyright Office web site (and other sites), and thereby discover what a waste of time self-mailing really is, in relation to other strategic alternatives.

As for your last question about a home-recorded CD, I wonder, when a tree falls in the forest and there's no one around, is there is a crashing sound? Seriously, without generating a thoughtful and intelligent paper trail, it is hard to prove anything. Indeed, one of the lawyer’s functions is to help clients create a thoughtful and intelligent paper trail on any matter of significance to the client.

However, do not think for a minute that a home CD recorded on a computer, for example, fails to leave a trail. Most modern litigators will tell you that computers leave traces too, and that it is very hard to permanently erase data from computers (without melting them, I suppose). One computer-minded litigator with whom I attended a seminar once told me that an everyday interoffice e-mail at work could possibly end up leaving its trace in as many as sixteen or eighteen different e-locations.

Let’s say a U.S. Attorney had to prove or disprove one’s claimed creation date of a song, in a criminal copyright infringement matter, for example. I suppose that the U.S. Attorney would probably first find a way to confiscate the hard drive, and then find a way to print the creation date of the relevant music file on paper. But when submitting it into evidence before the court and the federal judge, the U.S.’s Exhibit “A” would probably still be in hard-paper format, at least now, in our generation.

That said, I try never to rely on a computer record alone, for anything. Even as a environmentalist who loves trees, I make a careful paper trail, and back things up. I help clients do this in a thoughtful and strategically advantageous manner as well. Part of a lawyer's skill is simply to constantly ask oneself whether something can be proved, on paper, in court, to the client’s advantage.

Is the best way to legally protect copyrighted works to register them with the U.S. Copyright Office? Is it the only way that will hold up legally?

For U.S. authors and U.S. works, yes, it is at least one of the best ways; but no, it isn’t the only way. Please see my answer above, and please also see my article on copyright registration.

Obviously, one of the best ways to protect a work is to consult with legal counsel before disseminating the work! The issues posed thereby, by the client, might transcend copyright registration practice alone, and might also cross international boundaries. After all, the U.S. is not the only country that has copyright law, and that of other countries, such as China, might surprise you.

Under U.S. law, a copyright in an original work exists as of the moment it is reduced to a tangible medium of expression. In that sense, the protection “holds legally” as of the item’s creation and reduction to tangible form.

However, if you want to sue on a copyright in federal court, you need to first register the work with the U.S. Copyright Office, that is, not with the Writers Guild (WGA), and not by mailing it to yourself. Copyright Office registration is not necessarily the only way to protect yourself, but it is one of the best ways. And as indicated above, there are likely to be other self-protective steps that artists can take along the way, which will help them to protect their rights and interests further.

One such additional step is to be wary of those with whom one conducts business, but that would probably take up a whole new interview!

Do you think that it would be desirable for recording artists to be in a similar position to that of actors, i.e. recording for different labels without being contractually bound to one? Do you think this would work?

In some form, maybe.

First, I would keep in mind that actors are not as “free” as you might think. My father is a working actor in New York, so this issue is something familiar to me.

In principle, while it is true that much of the old Hollywood studio system of autocracy may have now fallen by the wayside, actors can still find themselves bound by extrinsic forces from time to time. Sometimes diplomacy and politics require an actor to work with people whom the actor would otherwise avoid. Sometimes, the fact that there are only so many houses in town limits the number of the actor’s viable options in terms of people and companies with whom he or she might work.

Actors are bound to their unions and union rules, including payment of dues and stringent Rule 1 enforcement. Actors can still sign multi-picture deals with studios or production companies, but God help them if they do so without counsel. Actors can set up production deals and their own production company on the studio lot, often in exchange for their own acting output, and that can become a case of proverbial golden handcuffs.

In addition, actors may sign with agents and managers, and then perhaps find themselves unable to break those contractual commitments, even if they believe that the agent or manager isn’t doing his or her job.

Second, I would keep in mind that it is entirely possible, legally, for an artist to contract with a label for a single record alone. I have done exactly that for clients, and I have seen others do it, too. Not all record deals are multi-album deals. Even if the system tends to bind artists to long-term commitments and multi-year deals, in most cases nobody holds a gun to the artist’s head forcing him or her to sign that multi-CD deal. However, I suppose a few things even crazier than that have happened recently in the music world.

The point is that it is all a matter of leverage and negotiation. There are several external limits on the duration of an artist’s personal services contract, and limits as to the one-sidedness of its provisions—California’s seven-year rule is one example. There is also legislation currently under discussion that will further codify the expected principles of fairness in artist agreements.

But the best way to change what remains of the system is to first buck the system. And if enough artists, be they acting in concert or otherwise, start refusing to sign oppressive recording contracts, then and only then do they stand a chance of changing the system. The problem is that most new artists are fairly desperate to get signed, so you would always have the proverbial “free rider” problem. There would always be some young talented kid signing the five-year deal without counsel, anyway, which in turn would undermine the cause that the other artists sought to support.

It’s essentially the trade union paradigm all over again. Perhaps the more interesting question is why the musicians' union has never set minimum standards for its members' recording agreements with labels. After all, the Writers Guild of America (WGA) requires guild minimums to be paid by signatory studios to its members under most circumstances, as does the Screen Actors Guild (SAG). Why has no AFofM equivalent evolved, which, through a collective bargaining agreement (CBA), limits the term of its members' contracts to three or even two years, or limits the output for contracts to one, two or three albums only?

There are many counterarguments to consider, though. Most labels won’t want to invest in a band, new or otherwise, unless they can reap the yield from the seeds they sow. If every band signed a one-CD deal with each label, why would any label have the economic motivation to give the band any post-CD-release tour support, particularly for the latter legs of the tour?

Moreover, most artists don’t see any real revenues from their record deals until the second or third CD, if at all. Some of the reasons for this are delays in collection and accounting, and just general bureaucratic molasses. A band must also achieve a certain amount of momentum to be economically successful. Conversely, there are many one-hit wonders out there who are still living on subsistence income.

In short, while I love the idea of one-CD deals from the artist’s perspective, I have trouble imagining the economic model that would make it work. The labels would fight it kicking and screaming.

One model I can imagine, however, is artist and band self-distribution, which simply cuts out the middleman. Although it seemed like a pie-in-the-sky notion ten years ago, it is actually starting to happen in limited ways at least, today and as we speak. And how can a label kick and scream, if it doesn’t exist? After all, does a tree falling in an empty forest make a crashing noise?

Is there a particular type of contract that is generally tougher to negotiate than others?

Tougher? I don’t think so. Thankfully, there is precedent for virtually all these types of deals. And lawyers are creatures of precedent, after all. We collect precedents, for fun. And sometimes, we are lucky enough to set precedents.

As a general rule, I think negotiating with a non-lawyer on the other side of a deal is actually tougher than negotiating with a good lawyer. A negotiation through counsel is, in theory, less likely to become acrimonious, which is a good thing.

I suppose it could be said that the early Internet-related contracts were tougher to negotiate, in the sense that there was, at the time, a vacuum of rules, customs, practices and laws governing them. But that void has, by now, started to close, and the fact is that most lawyers like myself who like variety in their practice actually enjoy that type of challenge.

Answers (c) 2003 John J. Tormey III, Esq. All Rights Reserved.
Questions (c) 2003 Hitquarters. All Rights Reserved.

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Interviewed by Stefan Sörin

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