Releasing Your Own Record
A 15-POINT LEGAL CHECKLIST
For artists who are releasing their own record for the first time, without the involvement or assistance of a label, the process can be a little intimidating. It can be easy to miss some key legal details in the process.
Therefore, here is a very basic checklist of issues to be considered when releasing a record. Bear in mind, though, that your own particular circumstances may dictate that you take certain steps that are different from, or in addition to, the various steps mentioned below. Also, it has been necessary to greatly oversimplify some of the issues discussed below due to space limitations.
- Agreement Between Members of Group. If it is a group (as opposed to a solo artist) releasing the record, and if the group has not already formalized its relationship by way of a partnership agreement, incorporation, or limited liability company (“LLC”), there should at least be a clear and simple written agreement among the group members about how the finances of the recording project will be handled. Also, it is always a good idea to deal with the issue of the ownership of the group¹s name as early in the group¹s career as possible.
- Investors. If there are investors involved, documents will need to be prepared in order to comply with certain Federal and State securities laws. Be especially careful here.
- Distribution and Promotion Strategy. Think ahead about how the record will be distributed, advertised, and promoted, and how much money will be needed to effectively market the record. Sometimes all (or almost all) of the budget for a project is spent on recording and manufacturing costs, and there is little or no money left to effectively advertise or promote the record. This, of course, is not really a legal issue but is such a common (and often fatal) problem that I feel obliged to mention it here.
- Mechanical Licenses. For any cover songs appearing on the record, you must obtain a mechanical license from the owner of the song (i.e., the song¹s publisher), authorizing the song to be recorded and providing for the payment of mechanical royalties.
For many songs, the license can be obtained from The Harry Fox Agency (212/ 370-5330, or click on http://www.nmpa.org/hfa/licensing.html). By going to the Harry Fox website’s “Songfile” search engine, you can determine whether they handle the songs that you need to license. If so, then call the Harry Fox Agency and ask them to fax or mail you the necessary forms.
Generally speaking allow six to eight weeks for the Harry Fox Agency licensing process to be completed and the license issued. However, there is one exception to this long process: If you are an individual and are initially pressing 2500 units or less, you can use their online licensing process by going to http://www.songfile.com/nonpro_search.html. That way, the licensing can be wrapped up in a few days.
For songs not licensable through Harry Fox, you must contact the publisher directly. Usually the easiest way to do so is to obtain the publisher¹s telephone number info from the “song indexing” departments at ASCAP and BMI.
- Sampling Clearances. If you are including any samples on your record, you need to obtain sample clearances from the publisher of the musical composition being sampled AND, separately, the record label that owns the master being sampled. Do this as early as possible, as there will be some instances in which either the publisher or label will not be willing to issue a license, or the licensing fee which they require may not be affordable.
Also, some duplicators will require you to sign a form stating that either you have not used any samples, or that if you have done so, you have obtained all necessary clearances. If there is any obvious sampling done, the duplicator may require you to show them the clearance documentation.
- “Work for Hire” Agreements. For any session people, engineers, etc. whom you are hiring, it is wise to have them sign a short and simple “work for hire” agreement, to preclude any possible future claims by them that they are owed royalties or that they have ownership rights in the masters. Do this BEFORE you go into the studio.
- Producer Agreement. If you are using an outside producer, there needs to be a producer agreement signed, defining (among other things) how the various costs of the recording sessions will be handled, what advances (if any) will be paid to the producer, and what producer royalties will be paid to the producer. Just as in the case of the Work for Hire agreements mentioned above, do this BEFORE you go into the studio.
- Production Credits. Make sure that the production credits listed in the liner notes–for session people, producers, and others–conform to any contractual requirements. For example, the producer agreement will often be very specific about how the producer¹s credits are to be listed. For musicians performing on the record who are signed to a label, they will normally need to be credited as appearing “Courtesy Of” their label.
- Liability Releases/Permission Forms. You need to consider the possible necessity of getting a liability release or permission form signed in any of the following scenarios: (a) If a photograph and/or artistic image of an individual outside the group is included in the artwork; (b) If any of the artwork which you are going to use is owned by any third party; or (c) If any logos or trademarks owned by third parties appear in your artwork. There can be some tricky legal issues in this area, so be very careful here.
- Copyright Notices for Songs. Be sure that the liner notes contain the correct copyright notices for all of the songs on the record, i.e., both for your original songs and any cover songs that you are using. Information about copyright notices can be obtained at http://www.lcweb.loc.gov/copyright. Also, make sure that the song credits correctly state for each song the name of the song¹s publisher and the publisher¹s performing rights society (i.e., ASCAP, BMI, etc.).
A non-legal sidenote: At the same time you are working on the artwork and the copyright notices, etc., double-check to make sure that your artwork meets all technical specs of whoever will be printing the artwork. Also, if you will be distributing the record through a record distributor, make sure that your artwork conforms to the distributor¹s specs.
- Copyrighting Your Original Material. Certain copyright applications need to be filed promptly for your recordings and for your own original songs. Use “Form SR” for copyrighting the masters of the songs, “Form PA” for each of your original songs on the record, and “Form VA” for the artwork (if you own the artwork and want to copyright it). You can download the copyright application forms from the Copyright Office¹s website (http://lcweb.loc.gov/copyright).
In some instances, it is possible to file an SR form to cover both the musical composition and your particular recording of that musical composition. The instructions for Form SR discuss when and how you can do this.
- Registering Your Original Songs with BMI/ASCAP. Assuming that the record contains one or more songs that you have written, and assuming that you are affiliated with ASCAP or BMI, or are in the course of becoming affiliated, you will need to file “title registration” forms for each of your original songs appearing on the record. This will enable your rights society (i.e., ASCAP or BMI) to monitor any airplay of your material.
- Trademark Notices/Registrations. Be very sure that you have the legal right to use the group name and label name which you have chosen, and consider the advantages of filing trademark applications for those names. Generally speaking, it’s a very good idea to file a federal trademark application for those names as soon as possible.
Also, make sure that your liner notes contain a proper trademark notice for the name of your group, and (if applicable) the name of your label. Information about trademark notices can be obtained at http://www.uspto.gov/.
- Obtaining A Bar Code. For information about bar codes, check out the following website: http://www.uc-council.com. Or call the Uniform Code Council at (937) 435-3870 (Dayton, Ohio). Also, many CD duplicators will, as part of their service and at no additional charge, provide you with a bar code for your record. Ask about this when getting quotes from duplicators. Also, for the reason mentioned in the next paragraph below, you may want to make sure that any bar code you obtain from a duplicator will identify your particular record, and not someone else’s record.
- Registering with SoundScan. If you anticipate significant sales and want to come to the attention of record labels, it¹s a good idea to register your record with SoundScan, a private company. SoundScan compiles record sales data based on the scanning of bar codes from sales at retail stores and then sells that information to its subscribers, which include all of the major record companies. You can obtain a SoundScan application form by clicking on http://discmakers.com/soundscan.
If you plan on submitting a SoundScan application, be sure that you obtain a bar code specifically for your own record. If, instead, you “borrow” someone else¹s barcode (or the duplicator¹s general barcode), your sales will be credited to them and not to you.
Hopefully, the above checklist will help to reduce, at least slightly, some of the stress and strain of putting out your own records. The key, of course, is to think ahead as much as possible. Some of the steps mentioned above, such as obtaining sampling clearances and mechanical licenses, can take some time and a lack of planning can unnecessarily increase your costs and/or delay the release date.
Also, make sure that you have all of your “ducks in a row” before you schedule any record release event. It¹s not an enjoyable experience to be locked into a record release date, only to find out at the last minute that you aren¹t going to be receiving your CDs from the duplicator by the time of the event or that there are legal or technical problems with either the CD or the CD artwork.
By thinking ahead, the odds are much better that your record release will proceed smoothly and that, after the record release, you will be able to spend your time and budget effectively promoting the record, rather than having to spend time doing repair damage.
Bart Day is an entertainment attorney in private practice and the co-author of a chapter in The Musician¹s Business and Legal Guide, a book compiled by the Beverly Hills Bar Association and published by Prentice-Hall Publishing (New York). From 1997 to 2002, Bart was an elected member of the Board of Governors of the Pacific NW Branch of the Recording Academy (the organization that presents the Grammy Awards). He has been a frequent speaker and panelist at music industry conferences in Seattle, Portland, New York, Los Angeles, and Vancouver, B.C.