Hiring a Music Attorney:
Some Insider Tips
by Bart Day - Entertainment Attorney, April 2012
Back to The
Academy
If you are seeking a career in the music business, there
will most likely come a time when consulting with an attorney will be
helpful.
As an attorney myself for over twenty years, I have observed
over the years many attorneys working with their clients, and I have seen many
attorney-client relationships work and not work. And since I want this article to be as helpful
as possible, I want to discuss here, completely candidly, what I believe what you
should know about hiring an attorney and working successfully with that
attorney.
When Should You
Consider Hiring An Attorney?
Certainly, you should consult with an experienced
entertainment attorney before you sign a contract of any significance.
Also, an experienced music attorney can be very useful as a
'sounding board' for any ideas and strategies you have, and also can serve as a
source of contacts to various music business professionals who can help you
move ahead in the music business.
How to Find an Entertainment
Attorney
There are various ways to find an entertainment attorney, as
follows:
1. Referrals. Generally, the best approach is to ask people you know who
are in the music business and who have previously hired a music attorney. Find out
whether they had a good experience with the attorney, whether the kind of legal
matters the attorney handled were similar to the legal matters you need help
with, and whether the attorney’s fees were reasonable.
2. Music Business Directories. There are various music
business directories which list music business attorneys, often by geographical
area. One such directory is the Recording Industry Sourcebook. Also, the Los Angeles music business magazine Music Connection in Studio
City, California annually
prints out a national directory of music business attorneys in one of its
monthly issues.
3. Music Business Conferences.
One good thing about music business conferences – especially the large
conferences like SXSW – is that they are a good way to meet music business
attorneys and to have some casual interaction with them. That way, you can get
a good sense of whether they are a good fit for you. Usually you can find music business attorneys
on some of the panels at the conference (when you will usually have the
opportunity to speak with them after the panel), and also at the scheduled 'mentoring
sessions' available to attendees at the conference.
Once you have the names of a few attorneys, do some online
searching, to get a better idea of how much experience they have.
Deal Shopping
Music attorneys are accustomed to being asked by prospective
clients whether they do "deal shopping" – i.e. whether they will approach
record companies and music publishers to try to get a record deal or publishing
deal for the client.
In my experience, attorneys who advertise that they do "deal
shopping" are most often the last people in the world you want representing you
to labels and publishers. Often they are shopping multiple clients at the same
time, which gives the impression to labels and publishers that they are just
deal shopping 'for hire' and don’t really believe in the music.
And there's another issue, which is a more recent
development. It used to be that labels were more willing to consider material
brought to them from attorneys, since there was a possibility that there was
some obscure artist who might be the next big thing. But these days, labels and
publishers have their ears much more 'to the ground,' and believe (not always
correctly, I might add) that if there are any unsigned artists out there they
should know about, they already know
about them.
There is, however, one instance in which I have seen deal
shopping sometimes work, though. Sometimes an extremely well-connected attorney
will take a strong personal interest in an artist and will want to do anything
possible to help the artist, including approaching labels and/or publishers on
the artist's behalf. Having great
connections will help the attorney get 'through the door' and be taken
seriously. That being said, my experience has been that if the label or
publisher doesn't fall in love with the artist,
or believe that the artist has great commercial potential, they are not likely
to be interested in signing the artist. And even if they do sign the artist – based
primarily on the attorney's status in the industry – it's ultimately not likely
at the end of the day that they will put the promotional muscle behind the
artist necessary to make the artist a success.
In any event, if you decide to hire an attorney to do 'deal
shopping,' make sure their compensation is on percentage basis only, and that
you are not having to front the legal cost. If they don't believe in you enough
to shop you on a percentage basis, they probably do not envision their
'shopping efforts' being very successful. Also, make sure that you have a clearly written agreement with the attorney spelling out the arrangements. And it's best not to sign such an agreement
until you have first had an opportunity to obtain knowledgeable advice from a
music business expert about whether the terms of the agreement are reasonable.
Contacting an
Attorney for the First Time
Before contacting an attorney, make sure that you are clear
in your own mind what you are expecting from the attorney, and define what your
legal needs are, as best you can. And make sure that you are ready to concisely and clearly communicate those
needs to the attorney. The more you can do so, the more professional you will
seem to the attorney, and the more seriously you will be taken.
Some attorneys will be willing to have an introductory
meeting with you, just so you can meet them and feel out whether they might be
a good fit for you. You could start this process by calling a few attorneys or
sending them an e-mail, just describing briefly who you are and what you do,
and what your legal needs are, and asking whether they would be willing to
spend 10 or 15 minutes with you, so that you can meet them. Be careful not to
"hype" yourself to them; just make it 'down to earth' instead. Experienced
music attorneys have pretty advanced 'BS detectors,' and it will hurt your
credibility if they think you are at all hyping your situation.
If you then find one or more attorneys willing to briefly
meet with you on an introductory basis, don't expect them to discuss the
details of your legal matters or to give you legal advice as such; remember
that the point of the meeting is just to have an introductory session just so
you can meet the attorney. If they think you are just trying to get free legal
advice, it will usually not start out the relationship on a very good basis,
since 'time is money' to the average attorney. And be sure to stick to the
15-minute or so time frame, unless the attorney clearly indicates that he or he
wants to have a longer session with you.
This is not to say that attorneys are just mercenary
creatures; most attorneys I know do a substantial amount of pro bono work. That
being said, most attorneys have significant overhead costs and very busy
schedules and do not have the luxury of donating big blocks of their time to
non-paying clients.
By the way, it can sometimes take awhile for a client to
find an attorney who is a good fit. Therefore, it's better to start looking
sooner than later.
Sample Questions to
Ask the Attorney
- How many years have you been practicing music law?
- What percentage of your law practice is music law?
- Have you done anything else in the music business (otherthan being a music lawyer)? (All things being equal, I would always prefer to
hire an attorney who has had other experience in the music business (played in
bands, been a manager or producer, etc.), since they will have a broader
perspective. It also shows that they have a passion for music.)
- Have you represented any artists with whom I would be
familiar? (Be careful, though, when attorneys, or anyone else for that matter,
say they "worked with" such and such artist, especially if it is an extremely
well known artist. It is common in the music business for people to inflate
their credentials to the Nth degree, and their claimed relationship with a
major music business figure often turns out to be an insignificant and
tangential relationship.)
- What is the attorney's fee structure? Do they charge at an hourly rate basis, or on
some kind of 'flat fee' basis?
- Are there any kinds of music business matters the attorney does not handle?
Things to Look For In an Attorney
1. Do you feel that
the attorney is really listening to
you, and really trying to understand your legal matter and your goals and needs,
or instead, does the attorney just seem to want to hear himself or herself talk
and is just on one big ego trip?
Obviously, if it is any of the latter things, that is a bad sign indeed.
2. Do you feel like
there is good chemistry between you and the attorney, and is the attorney's
personality relatively similar to yours?
3. Are you
comfortable with the attorney's level of expertise?
4. Are you
comfortable with the attorney's communication skills and people skills? (Remember,
there will be times when the attorney is speaking on your behalf, in which case
it can really hurt you if your attorney does not make a good impression on
people. You want an attorney who is not only looking out for your best
interests, but who is also able to establish rapport and trust with people who
could potentially help your career in a big way.)
5. Does the lawyer
seem to be cost-sensitive, and seem to be interested in handling your legal
affairs as efficiently and cost-effectively as possible? (There often is a long way and a short way to
get to the same result, and because attorney fees are often determined on an
hourly basis, the more hours the attorney spends on your legal matters, the
more you are paying. And so, you want an attorney who is smart and experienced
enough to realize that it is in your long term and his or her long-term interest for him to handle your legal work as
cost sensitively as possible, rather than just trying to maximize his or her immediate
income from you.)
6. Does the attorney
give you clear, concise answers to your questions? (It is likely that at some point your legal
matters are going to involve some fairly complicated and confusing legal
issues, and it will be very frustrating for you if the attorney cannot explain
those issues to you in a clear and simple manner.)
7. Does the attorney
speak to you as an equal, or does the attorney instead 'talk down' to you? (The
best attorney-client relationships are always based on mutual respect.)
8. Does the attorney have a good reputation? (If it is not
good, your own reputation may be tainted by your association with the
attorney.)
Attorneys to Avoid
1. Avoid attorneys
referred to you by a record company or publisher interested in signing
you. Just as an example, I know of a well-known independent label which regularly refers prospective artists to the same
attorney, and some of those artists end up hiring that attorney. That is potentially
a real problem for those artists, because that attorney is not likely to want
to do anything that would possibly alienate the label, since the label is
regularly sending him clients.
2. Avoid "dabblers."
By that I mean, attorneys who hold themselves out as handling entertainment law
matters, but who actually have very limited experience doing so and who in
reality don’t do that much entertainment law work and don’t have much real
expertise. That's why it's important to verify the true level of an attorney's
experience. 'Trust, but verify.'
3. Avoid attorneys
who guarantee you that their involvement will bring you fame and fortune.
4. Avoid "know it
all" attorneys with a 'deal killer' mentality or who seem to have a chip on
their shoulders. Often attorneys like this want to show how much they know, and
one way to do that is to find as many problems with an offered contract as
possible. That being said, by no means would I ever criticize any attorney for
being thorough and detail-oriented and critical of the contents of a contract.
But I've seen many situations in which such attorneys have, consciously or
subconsciously, sabotaged deals which would have clearly been a win-win on both
sides of the deal if only the attorney had been more focused on moving his or
her client's career ahead, rather than letting his or her ego take over.
By the way, you can also run into a variation of the same
problem, but with inexperienced
attorneys, who don’t know what industry standards are and who, due to their
lack of comfort with the situation, may decide that the safest thing to do is
to tell their client not to sign a contract.
5. Avoid attorneys
who seem reluctant or unable to discuss legal cost issues in a straightforward
way.
Big Firms versus
Small Firms
For one reason or another, you may find yourself in a
situation in which you need to choose between a smaller law firm and a large
law firm. The size of law firms varies tremendously, from one lawyer to (at
some of the big national law firms) literally hundreds of lawyers.
Here is what I see as the advantages of big versus small law
firms.
Advantages of
smaller law firms
Normally at smaller firms you will get more personal
attention, and as a general rule the hourly rates will be lower and your legal
costs will be lower.
With a smaller firm, you are more likely to continue to work
with one or two regular attorneys, rather than being shunted around to
different attorneys, which is more likely to happen at a large firm.
Also with a smaller firm, their clientele is more likely to
be primarily individuals and smaller companies, and not large corporate
clients. And so, you are more likely to be higher priority at a small firm than
at a large firm, where their big corporate clients are likely to get the most
attention.
The personality of a smaller firm is usually more
comfortable to most musicians.
Advantages of
larger law firms
The main advantages of large law firms are their broad range
of expertise on just about any kind of legal matter, and the sizes of their
staffs. And so, if you have a visa issue while on tour in
China,
or an extremely complex tax issue relating to your royalties, a big firm is
much more likely to have attorneys on staff who are experts about those things.
And if you get involved in complicated litigation, and need a 'small army' to
go to bat for you, a larger firm will have that capacity.
All that being said, it is unusual for musicians at the
early stages of their careers to have those kinds of legal needs in the first
place. And if those needs do arise, an experienced entertainment attorney
usually has a network of resources that will enable the attorney to find the
right expert quickly.
Meeting With an
Attorney to Discuss Your Legal Matters
Before your first appointment with an attorney, it's a good
idea to prepare a list of the questions which you want to go over with the
attorney. Then, ask the attorney what documents you should bring with you to
the meeting, and make sure that you then have any relevant documents well
organized. Plus make a copy of them so that both you and the attorney each have
a copy in front of you when you are discussing those documents.
Legal Fees
Most attorneys work at an hourly rate, which on the low end
is $150 an hour, up to $500 and more per hour, especially at some of the large
entertainment law firms in the major entertainment industry cities. My
experience is that most well-qualified entertainment attorneys at small or
medium size law firms are currently charging in the range of $250-$400 per
hour.
In terms of hourly rates, one thing to consider is that an
attorney's hourly rate doesn't really tell you what the total cost will be. A
very experienced attorney is much more likely to be able to handle your legal
matters quickly and efficiently, since they likely will have handled the same
legal matter many times before, and so, you will not be paying them 'to learn
on-the-job.' As a result, even if their
hourly rate is higher, the total cost could end up being less.
Whenever possible, it is always a good idea to try to get a
cost estimate from the attorney.
Sometimes it will be practical for the attorney to give you an estimate,
and sometimes it won't be. For example, if the attorney is preparing a standard
kind of agreement, it will likely be possible for the attorney to give you an
estimate of the amount of time required to complete the task. On the other hand, if you are having the
attorney represent you in negotiations, it is usually not really possible for
the attorney to give you a very specific estimate, since there are too many
variables outside the attorney's control.
One thing you can do even in that situation, though, is to
ask the attorney, preferably in writing, to let you know when the total legal
cost has reached a particular amount. That way, you will at least not feel like
you are signing a blank check. And, preferably, get it in writing.
Also, be prepared to pay the attorney a "retainer"
(deposit). The attorney will then put the retainer amount into the law firm's
trust account and pay himself or herself at the end of each month for work done
that month. There is no standard practice regarding the amount of the retainer;
it will depend on how much work the attorney envisions needing to be done. Not
all attorneys require retainers, though.
Most attorneys will also ask you to sign a "retainer
agreement," which will contain the terms on which the attorney will be
representing you. Read it carefully before signing and if you’re seriously
uncomfortable with anything in it, don’t let yourself get pressured into
signing it. You can always ask the attorney to delete the objectionable
clause(s), or you can ask 'for more time to think about it.'
Finally, as I mentioned above, most attorneys work on an
hourly rate basis. There is one significant exception to this rule. Often in
the case of artists who are signed to a major label, the attorney will
represent the client on a percentage basis (most often 5%) of the artist's
annual entertainment industry income, and so, the attorney is in effect being
paid a commission of your annual income, instead of charging you an hourly rate
for the legal work done. There are pros and cons of this kind of arrangement,
and it's always a good idea to get independent advice before entering into such
arrangement.
How to Maintain a
Good Relationship with Your Attorney
1. Stay in touch with
your attorney regularly and keep the attorney updated on any significant developments
in your career.
2. If some problem
develops in your relationship with the attorney, discuss the problem right away
with the attorney, and in a non-critical and non-confrontational manner. It's very possible that the attorney is not
even aware of the problem.
3. Make sure you
understand what your financial obligations are to the attorney, and then pay
your legal bills in a timely manner. The attorney will value you more as a
client, and consider you a more reliable person, if you stay on top of the
financial aspects of the relationship. And the attorney is more likely to stick
his/her neck out for you with other people if the attorney considers you a
reliable person.
4. If you have a
legal matter which requires urgent attention, make sure the attorney understand
that. But by the same token, don't make every legal matter an "emergency."
5. Don't take more of
the attorney's time than necessary. It will save you money in the long run, and
will also show the attorney that you are doing whatever you can to try to avoid
unnecessary legal expense.
This article is a
new chapter in the 2012 edition of the book “Music Is Your Business: The
Musician's FourFront Strategy for Success,” which will be available soon.
Editor's Note: Bart Day is
a partner at the Portland, Oregonlaw firm of Day and Koch LLP and has
a national entertainment law and copyright/trademark practice. He has been
involved for over twenty years in a wide array of music, film, and television
productions, and previously worked as an attorney for a Honolulu concert promotion company, as VP of Business
Affairs for a Los Angeles entertainment company, and as outside counsel for
Universal Studios. Bart co-authored a chapter about record companies in The
Musician's Business and Legal Guide (Prentice-Hall Publishing) and the book
“Music Is Your Business: The Musician's FourFront Strategy for Success.” Bart
was recently elected as a member of the Board of Governors of the Recording Academy (Pacific Northwest Chapter), presenter of the
Grammy Awards.
He can be reached at bart@dayandkoch.com
and at 503.224.4900.
NOTICE TO MUSIC ACADEMY WEBSITE VISITORS: The above information is offered
for general informational purposes only, and not for the purpose of providing legal advice. You are cautioned to
seek the advice of your own attorney concerning the applicability of the general principles discussed above to
your own particular activities.
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