This article originally appeared on Performer Magazine.
The legal profession is filled with specialists. Name a specialty in business, technology, government, environment, real estate, employment, or education, and you’ll find a practice of law tailored to meet the specific needs of that specialty. The entertainment industry is no different, with a host of sub-specialties in art, music, film, television, radio, intellectual property, and unions, to name a few. Here are the basics on what you need to know about entertainment lawyers, and whether it's time for you to hire one.
What do entertainment lawyers do?
Lawyers representing musicians will perform a vast variety of services, from reviewing contracts to negotiating deals to pursuing matters in court. Generally, I categorize entertainment lawyers in two camps: “Negotiators” (lawyers who arrange deals) and “Litigators” (lawyers who pursue matters in court and generally deal with matters when problems arise).
The Negotiator rarely (if ever) finds him- or herself in court, with the majority of his or her time spent in the office, on the phone, and meeting with clients, labels, and other attorneys. The Negotiator’s job is more transactional, with a focus on drafting and negotiating deals, including management contracts, record deals, publishing arrangements, deals with booking agents, concert promoters, etc. In a way, the Negotiator’s job is similar to that of an artist manager, with a narrow focus on the legal terms and ramifications of any particular deal. The Negotiator has relationships with label heads, publicists, managers, and other industry figures and can skillfully navigate the legal waters on your behalf.
A good lawyer will know the finer deal points in contracts and sense where to give way and when to stand his or her ground. Contracts go through multiple (if not dozens of) revisions and edits before they’re signed, and often, it will be the label that provides a standard-issue contract to start things off. As you’d expect, these contracts strongly favor the label, which is why your lawyer will sift through the fine print for you. Another job of a transactional lawyer is to help you – the new artist – understand the business, benefits, and downsides to entering into certain agreements. A lawyer can often be a one-stop for other people you might need along the way – business managers, accountants, agents, and so on.
A Litigator’s focus is the “law,” and he or she will help you if (but, more likely, when) a dispute arises during the course of your career. Litigators identify potential legal issues in a given conflict and may attempt to resolve them through litigation (the court system), arbitration (privately run conflict resolution, like an informal trial), and/or mediation (moderated negotiation). Litigators know the ins and outs of contract and intellectual property law (the two most common areas at issue with musicians) and are well-versed in filing suit, drafting pleading, and arguing motions before the court.
When should you hire one?
The first time you’re handed a contract, you should have a lawyer review it prior to signing. Even the most well-intentioned agreements can have long-lasting consequences. At the outset, you’ll want to find a lawyer who specializes in intellectual property (copyrights, trademarks) and contract law, with a focus on the recording industry. Remember – just because someone is an "attorney at law" doesn’t necessarily mean he or she will have any experience in the field (and you don’t want to be a real estate attorney’s "music biz guinea pig").
Entertainment lawyers generally work or have worked for firms specializing in the field or have a reputation and experience in representing artists, labels, etc. If you don’t personally know a lawyer that may point you in the right direction, ask others who you know in the business – bands, promoters, managers, and the like. Also keep in mind that law is still very much a local game, and certain laws vary from state to state, so at the outset, you’ll want to hire a lawyer in your town or city (and make sure that he or she is licensed in your state).
What does it cost?
Another important consideration is cost. Generally, there are two methods for payment: hourly billing or a flat fee. Hourly rates differ widely based on geographic location and experience (ranging anywhere from $100 to $1,000 an hour). Typically, you’ll be required to provide a retainer up front, which your lawyer will debit as time accrues. Flat fee structures are becoming more routine in today’s field and are transaction-based (a lawyer will charge X amount for copyright registration, contract negotiations, etc.). Avoid any payment method in which your lawyer takes a percentage of your deal – these setups are against your best interest and, in most states, illegal. Either way, your best bet is to arrange a consultation with a lawyer (these are usually free of charge) and ask as many questions as possible. Lawyers don’t come cheap, so make sure you know what you’ll be paying for.
If you don’t have the money to afford a lawyer, but require counsel, try finding a lawyer who’ll represent you without charge. This may be a fan of your music or a young lawyer just breaking into the business. You should also find out whether your state has a Volunteer Lawyer for the Arts – these organizations help musicians with a variety of legal issues and are often stocked with experienced and personable attorneys.
DISCLAIMER: The information contained in this column is general legal information only. Any use of this column does not create or constitute an attorney-client privilege. Consult your attorney for all specific considerations.
Adam Barnosky is a practicing attorney and writer specializing in entertainment law and business development. He has worked with musicians, actors, and playwrights in Boston and New York City. Follow him on Twitter @adambarnosky.