Industry Insider | Q&A: Michael Aczon

Oct 1, 2008 12:00 PM, By Mike Levine

           
 

THE CHANGING LEGAL LANDSCAPE FOR MUSICIANS

Why has the trademark issue changed? Didn't you always have to trademark your name? Is it because of the online aspect of it?

Right. I think that because of the ability to go out there and almost automatically cross state lines with your work [due to the Internet], a lot of acts are trademarking — I wouldn't say prematurely, but they're pulling the trigger a little bit quicker than they used to. Certainly more quickly than 20 years ago, when you really weren't thinking about “Oh, do I get a trademark because I'm going to go outside my city and try to sell CDs?” I'm giving away my age here, but when I started out, if I was going from, say, California to Utah to sell my recordings, I had to think, “Now I'm crossing state lines. Maybe I should get a few things in order.” These days, I could be recording something this morning and it could be available for sale internationally by this afternoon.

What other legal issues have changed for musicians?

Copyrights. And again, this is a shift with technology. Before, musicians would think solely about two copyrights: their compositions and their recordings. Now, if you're putting up a Web site, you have to think about copyright ownership of photographs, text, and videos; as well as all the audio.

So let's say that a band puts up a Web site and they post photos that a photographer friend gave them. Would the band have the right to use those photos?

If somebody shoots band photos, friends-of-the-band photos, you definitely want to make sure you have permission from that person to use the pictures for public use. I've experienced it in my practice where someone is a fan one second, but fan status changes when the record goes gold. Another issue to consider is that of privacy rights. People have a right to privacy, and they ultimately control anything associated with how that right is used. What if I shot video of a fan doing a crazy dance at my show and wanted to put that on my Web site or YouTube? Technically speaking, if I want to post or sell videos including her, I would need to obtain a release from the dancer in order to legally use her name and likeness. That's a pretty big burden to put on some rock band.

What's your advice for musicians in terms of dealing with these new issues? It's pretty expensive to put an attorney on retainer.

It's really expensive. Self-education goes a long way. I'm going to shamelessly plug my own book, but there are a number of great books out there that give a good basic overview of what some of the issues are. I don't want to make anybody [paranoid about legal issues], but I think having a legal paper trail helps: videotaping or recording and following up with some documentation of what are potential legal issues. Who wrote the song? That question comes up frequently. You can strengthen your legal position a lot just by having an original version of the song as soon as you've recorded it. That way, if somebody says they wrote their way into it, now you have two versions — and you can say, “Here's what I brought to the band.” And [then the question becomes] did they add significantly to [your song], or was it just arrangements, or was it just an ancillary part?

So musicians should take on some of the legal responsibility themselves. But at what point should they go to a lawyer?

Before actually going out and retaining somebody, I think musicians can find seminars in some of the more musically oriented geographic areas. I haven't seen a lot of them online yet, although I wish that I would. But I'm seeing more and more lawyers who are going out and doing legal seminars, and arts organizations that are doing music seminars.

Like music conferences?

Exactly. We're seeing more and more of those. And I think it's also a good idea to pay an attorney for a basic consultation. It lets them know you mean business.

You're saying to go to the attorney, pay that person for a half hour or an hour of time, and see if you have any legal issues you need to deal with?

Exactly.

Do you think there will be more and more legal issues confronting musicians as technology progresses?

We've been moving so fast because of technology, particularly in the last ten years, that the legal issues have had to follow it. I think those are shaking out, and my personal prediction is that it's going to slow down a little bit now that some legal and business models are being accepted by the creative, business, and consumer sides of the industry.

Mike Levine is EM's executive editor and senior media producer. He hosts the twice-monthly Podcast “EM Cast” (emusician.com/podcasts).