Releasing Your Own Record:
A 15-Point Legal Checklist
By Bart Day
For artists releasing their own record for the first time, without the involvement or
assistance of a record company, the process can be a little intimidating. And it can be easy to miss some key legal details in the process, particularly if there is not adequate advance planning.
Here is a basic checklist of issues to be considered when releasing a record. Bear in mind 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.
Just for clarification, many of these items are covered in much more detail elsewhere in this book.
1. Agreement between Members of Group. If you are a group (as opposed to a solo artist) releasing a record, and the group has not yet formalized its relationship with a formal partnership contract, incorporation, or limited liability company ("LLC"), there should at the very 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 group’s name as early in the group’s career as possible.
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.
3. 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, including a social media marketing strategy. Sometimes all (or almost all) of the budget for a project is spent on recording and manufacturing costs, with little or no money left over 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.
Your distributor may be helpful in terms of suggesting effective advertising and promotional techniques. Remember, though, that most distributors have their own promotion programs that you can buy into – for example, promotions with record stores such as point of purchase displays, and being included in record store print ads.
Distributors having such programs will of course have a self-interest in steering you to their own programs, even though there may other advertising and promotional tools, not involving the distributor, which might be more cost-effective for your particular situation, especially if you are on a very limited budget.
Don’t forget to include online marketing strategies in your overall marketing plan.
An excellent and up-to-date source of information is How to Promote Your Music Successfully
on the Internet, by David Nevue.
If you are investing a significant amount of money in your record release, or have
ambitious aspirations for your record, you may want to meet with an independent music
industry consultant who has a lot of expertise on how to plan and budget your
advertising and marketing campaign. Just like any other time that you are hiring
a professional to assist you, though, be very careful about whom you hire for
consultation purposes. Get references, for example and contact those references.
And make sure that the consultant’s fees are reasonable and that you have a clear
written agreement with them about how their fees will be calculated and when they
will have to be paid.
4. 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 song’s publisher), authorizing the song to be recorded by you, and providing for your payment of mechanical royalties to the publisher.
But first, make sure that you know who the current publisher/owner of the song is. Song catalogs are often sold by one publisher to another, and publishing company information found on existing albums may or may not be current. The search engines at www.bmi.com/search and www.ascap.com/ace can be very helpful in identifying the current publisher.
For many songs, the mechanical license can be obtained from The Harry Fox Agency
in New York. By going to the Harry Fox website’s “Songfile” search engine), you
can determine whether they handle the particular song(s) that you need mechanical
licenses for http://www.songfile.com/nonpro_search.html
If you are operating individually (i.e., not as a record company to which a number of artists are signed), you can use Harry Fox’s online licensing process if you are pressing 2500 units or less. That way, the licensing can be wrapped up much more quickly.
For songs not licensable through Harry Fox, you must contact the publisher directly. Usually the easiest way to do so is to obtain the publisher’s telephone number info from the "song indexing" departments at ASCAP and BMI or through their respective websites (ascap.com and bmi.com).
5. Sampling Clearances.
If you are including any samples on your
record, you need to obtain sample clearances from the publisher
being sampled AND, separately, from the record label that owns the master recording
being sampled. Do this as early as possible, as there are sometimes instances in which
the publisher or label is either not willing to issue a sampling license, or the
licensing advances and fees which they require are not affordable. Also, be aware
that typically the publisher of the sampled material will want part-ownership of
the new composition containing the sampled material. The contract with the publisher
will state exactly how the song credit for that song must be stated in the CD artwork.
Many 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 also require you to show them the clearance documentation.
6. "Work for Hire" Agreements.
For any session musicians, 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 or songs recorded. You should do this BEFORE you go into the studio to record, if at all possible.
7. 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 if possible.
8. 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, producer agreements are 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.
9. 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 any individual outside the group is included in the artwork; (b) If any of the artwork or text 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
Also, make sure that the song credits correctly state for each song the name of the song’s publisher and the publisher¹s performing rights society (i.e., ASCAP, BMI, etc.).
A non-legal side-note: 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.
You might also want to have your attorney give your artwork a quick look-over, to see if there are any obvious problems with the information contained in the CD packaging. I have a number of artists and label clients who, for this reason, routinely have their graphic artists forward a copy of the artwork to me to quickly look over before it goes to the printer.
11. Copyrighting Your Original Material.
applications need to be filed promptly for your master recordings AND for your own
original musical compositions. Use "Form SR" for copyrighting the masters, "Form PA"
for your original musical compositions, and "Form VA" for the artwork (if you own the
artwork and want to copyright it). You can now register online, and it’s faster and
less expensive to do so. For info:
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.
12. 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 should 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. You can now do this online.
13. Trademark Notices/Registrations.
Be very sure that you have the legal right to use the recording artist name and label name which you have chosen for yourself, 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. Otherwise, you may be forfeiting certain important trademark rights in the meantime.
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.
14. Obtaining a Bar Code.
Be sure that your CD packaging contains a bar code. (Most distributors require this.) Some 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. For the reason mentioned in the next paragraph, you should make sure that any bar code you use identifies only your particular record, and not other people’s records too.
15. Registering with SoundScan.
If you anticipate significant sales and want to come to the attention of record labels, it’s 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 else’s 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 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. In general, it’s wise to create a timetable for all the things you need to do prior to record release, so that you are doing things in a logical order and in such a way that you are allowing yourself enough time to get everything done.
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Also, make sure that you have all of your "ducks in a row" before you schedule any record release event. It’s not an enjoyable experience to have a record release event scheduled and then find out at the last minute that you won’t be receiving your CDs in time for the event, or that there are legal or technical problems with either the CD or the CD artwork. A good rule of thumb is to have CDs physically in hand at least four to six weeks prior to release of the record. (Check with your distributor about the exact time frame that they recommend.)
All in all, if you think 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 spending time doing repair damage.
[This article is a new chapter in the 2012 edition of the book “Music Is Your Business: The Musician's FourFront Strategy for Success,” to be published later this year.]
Note: Bart Day is a partner at the Portland, Oregon law 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 firstname.lastname@example.org and at 503.224.4900.