26 October 2020 - Article
The multi-million dollar award issued against Katy Perry for copyright infringement in her chart-topping hit “Dark Horse” now has many music artists on edge. With the spotlight now on legal issues in the music scene, music artists need to become aware of legal pitfalls which could waylay their best-laid plans.
“Us against the world”
Starting out, most artists have limited repertoires of original works and usually perform covers of famous hits to build a following. Many, however, do not realise that they need to obtain licences from collecting societies to perform cover songs each time they perform a live gig or post a video on social media platforms.
Even after having created their own original compositions, music artists may find out the hard way that their signature song is not as ‘original’ as they think. Sobering lessons on copyright infringement abound, from the sampling of a few bars of music in The Verve’s Bittersweet Symphony, “subconscious copying” in George Harrison’s My Sweet Lord, or even mere musical inspiration or influence in Blurred Lines by Robin Thicke featuring T.I. and Pharrell Williams. Popular artists such as Ariana Grande, Ed Sheeran and Sam Smith have since tried to pre-empt or settle copyright infringement claims by crediting writers of ‘sound-alike’ songs.
“Rage against the machine”
A professional record label or savvy agent can clear the path and prime an artist for success by managing permissions and licences, shouldering risk, and undertaking distribution and promotional activities.
However, they can sometimes be the artist’s worst enemy, as may be seen from Taylor Swift’s bitter struggle with her former record label, which held the rights to her earliest albums. Despite her enviable financial resources and bargaining power, she failed to seal a deal for the rights to be assigned back to her.
With management agencies and record labels holding the keys, it is easy for young and inexperienced artists to feel powerless, angry but resigned to signing their rights away in exchange for a chance at a major label debut.
However, with the rise of digital platforms such as Spotify and TuneCore, artists now have an opportunity to self-publish music and take matters into their own hands, even as they balance the benefits of autonomy carefully against the loss of having professionals and industry heavyweights supporting their career.
For such independent artists, social media platforms are a cheap and effective way of promoting their work and building a fan base. However, artists should always pay attention to the terms and conditions before posting their musical works.
Typically, an online platform such as YouTube or Facebook is granted a licence to use content posted by any user, and the usual ways of terminating the licence are by deleting that content or by terminating the user account permanently. It is difficult to control the use and reproduction of content once posted online and it often becomes a case of ‘whack-a-mole’ for anybody trying to police unauthorised infringement.
Certain platforms have particularly egregious terms and conditions, notably TikTok, which expressly warns users not to post commercial content because user content on TikTok is fully open to reproduction, adaptation and modification by all users in any format and on any platform.
“You’ve got a friend in me”
Friends, business partners, creative muse and family all rolled into one, bands have an additional complication to handle – their relationship vis-à-vis one another.
One of the first things they need to come to terms with is that they may not have equal rights to their music. Getting songwriting credits doesn’t just mean recognition as a creator, it also means an entitlement to creator royalties. A band member who only plays the music will be entitled to less royalties than the band members who also write the lyrics or compose the music. However, if the band is an equal partnership with each member improving the song as they practise and rehearse the song together, they could agree on co-ownership over the work.
Bands which are serious about turning professional would also do well to enter into a band partnership agreement. This will deal with issues such as ownership of the band name, money management, major decisions that require majority vote or unanimous vote, and most importantly, consequences of members leaving the band.
Save for precious few examples such as Aerosmith or U2, which have enjoyed longevity with the same line-up over decades, instances of members leaving the band are so common that it would be foolish not to plan for it. Uncomfortable issues are best not left until members are no longer on speaking terms. Does the band retain the right to the band name and to play the same songs? What if the departing band member was the key songwriter or is leaving for another band?
These issues may well dampen a budding artist’s enthusiasm, but armed with talent, passion and good legal advice, the music scene is still alive and well for those who have the thirst for success.