The Seay Firm has entered its sixth year of business, which has me reflecting on some of the most common mistakes musicians make, and how they can avoid making them. This list isn’t exhaustive and it may not even reflect the five most common mistakes musicians make. It’s not like I really index these things. But, hey, if you want to write “five mistakes The Seay Firm makes in its blogs and how it can avoid making them,” then be my guest!
1 – They Sign Contracts Without Having Them Reviewed
I get it – even the most sensibly priced attorneys aren’t cheap. And besides, someone wants to work with you! They seem trustworthy, right? Just sign it! I get a lot of calls from people who want out of a contract. This is easier desired than done. Even if we can plausibly allege breach, the other side almost always denies the allegation and insists that the contract is still valid, in which case the artist has three options, none of which are ideal: abandon the attempt to get out of the contract; act as if the contract has been terminated and dare the other side to file a lawsuit to enforce it; or preemptively file a lawsuit based on breach of contract or some other legal theory. Each of these options can cost significant money too.
I know this advice is coming from an entertainment attorney who makes a living reviewing contracts, but please have your contracts reviewed before signing them. Attorneys can often make up their fees by saving you from signing a bad contract or ensuring the terms you are offered are fair or at least fairer. Even if you’ve read the agreement and think you understand it, you may not know what’s missing from it. And don’t rely on a promise from the other party that the contract is fair or standard, as what is “fair and standard” for one party may not be “fair and standard” to the other, especially when the contract is being touted as “fair and standard” in an effort to expedite its execution! There is rarely ever a rush to execute a contract. Frequently when an artist tells me the other side is pressuring them to sign the contract, I discover that the rush is because the other side knows the contract is unfair and wouldn’t withstand scrutiny. You should feel comfortable taking time to review a contract, and if the other side pulls the deal, then you probably didn’t need to work with them anyway.
Oh, and for you managers and labels out there – I receive plenty of calls from you too, often distressed that the artist they signed isn’t performing under the contract. Oftentimes, I’ll review the contract that was used to sign those artists and find that it may not be enforceable. I’ve also seen people not ask for things for which they are entitled. You’re making a big investment of time and money in your artists – make sure you’ve got them in a binding agreement that accurately reflects the agreement of the parties. Doing so will save you time and money in the future, and your properly drafted form agreement, with perhaps a few modifications from time to time, is reusable down the road too. Don’t trust a form you found online either. Those are often woefully outdated or flat-out inaccurate for the deal you’re trying to paper.
2 – They Work With The Wrong People
Is it a surprise that this mistake goes hand-in-hand with the first one? Often the “wrong” people to work with are the ones handing you one-sided agreements they insist are fair and standard and which you simply must sign immediately. In life and in the entertainment industry, trusting your instinct is a good thing, but it shouldn’t be the only thing. You should do legitimate research into someone and their past before working with them. Ask any and every question you want – and this goes for entertainment attorneys, as well. I’m always happy to discuss my experience in the industry.
Sometimes the person asking you to sign the contract isn’t a bad person but, despite their good intentions, they may not know what they’re doing, or have the capacity to figure it out. You don’t necessarily need someone with a decade of experience in the industry, but at the very least you need someone who is eager and has a good head on his or her shoulders. Particularly with record label and management agreements, tread with extreme caution. Contracts are forever or close enough to it if you’re a young artist signed for five years to a shady manager with no legitimate connections.
3 – They Get Too Legal Too Soon
Surprised by this one? I get calls from people who are very eager to get everything squared away legally even before they’ve written their first song (really!). Sure, there are things you can and should do from an early stage (more on that below), but your first and most important task as an artist is to develop original and compelling content. It’s a good idea to have a legal roadmap and a priority list of legal needs and address those as time and resources allow. Of course, if you’re well funded, then sure, let’s register your trademarks, register the copyright in each individual song that you write, incorporate you, draft work-for-hire and band member agreements, split sheets, and everything else. For most developing artists though, money is at a premium, so it’s important to identify pressing legal needs and address them while simultaneously allocating resources to other things like beat producers, recording studios, photo and video sessions, etc. An experienced attorney can help you navigate these waters and make sure you don’t waste your money.
4 – They Don’t Get Legal Soon Enough
Okay, this is the other side of the coin, and it’s an important side. Gone are the days when all an artist had to do was write music. Yes, you still need to write compelling music, but it’s important even at an early stage to at least have a sense of the scope of things you will need to address when success comes your way. Try to get at least a basic understand of publishing and public performance royalties and digital aggregators and streaming mechanicals and sync agreements. At least be aware that these are things that exist, and then dive deeper into them as needed as you progress. I’ve written a series or articles here that discuss various artist revenue streams and how to collect them. You may also want to consider whether your band needs a band member agreement even at an early stage; it may not, but it’s worth thinking through these issues. Self-education on these and other issues is also good – check out some informative, easy-to-read resources here.
5 – They Release Their Music With No Support Behind It
I’ve written about this before. Artists put so much time and effort into their music. I understand financial restraints, but to make the most of your release, you should consider getting some promotion behind it, even if you have to generate it yourself. Keep in mind that the thing about publicity is it’s hard to track how much it actually benefits you, and ultimately, the music has to resonate with people for it to gain traction. It’s possible to waste a lot of money on the wrong kind of promotion, so make sure you’re working with good people who do good work specifically in the genre in which you’re operating. And don’t wait until it’s too late – consult publicists many months out from your release and develop a plan for ramping up to the release through video premiers and social media activity.
And it’s not just on the publicist either – you need to be promoting the work. Book shows, book a tour. You may not have a booking agent, but there are resources for booking your own tour. Yes, this is an investment, but it’s an investment into your business, and I think it’s a necessary one. Sure, you can always get really lucky and be plucked from obscurity, but for the most part, engaging in meaningful PR is just part of the process. And if you’re signed to a label, then be active in their promotion – even before you sign, ask about their marketing strategy. Do they use in-house PR or not? What’s their budget for marketing? Sometimes we can even get a budget stipulated in the contract. Stay involved throughout the process. Good, high-quality or compelling video content is important. Good luck!