Most musicians tend to put art first and business second, but a little familiarity with the rules of the game should see the two working hand-in-hand.
While Beethoven often spoke of a ‘gracious muse’ he never took inspiration for granted, famously rewriting compositions over and over until they seemed natural, almost inevitable. For the maestro, music wasn’t just a passion, it was a profession—or as Nick Cave reprised it many years later, “I get up each morning, put on a suit and go to work.”
Business and art may, on occasion, make uncomfortable bedfellows, but almost every successful musician has had to augment creativity with toil and grind. Given today’s music trade is more unforgiving than ever, capitalising on that hard work is paramount, and a savvy artist needs to know how to make the most of their rights, and the industry’s responsibilities.
VALUE YOURSELF AND YOUR ART
Betty (Paraskevi) Kontoleon is a solicitor and lecturer with UniSA's School of Law, and co-author of the new book, Music And The Law. She also sings for the band Dirt Playground, sings Greek as a freelance artist all over Australia and, despite her legal background, admits to being as guilty as anyone in neglecting the business side of her music.
“Even I fell into the trap of thinking, ‘Oh well, they're going to give us a jug of beer, let’s play’,” she says. “But music makes such a huge contribution to society and too often the people who make music don’t get anything back for that.” The problem for many musicians is that excitement over an opportunity to share their art often leads them to devalue their work, and while a bit of ‘doing it for the love’ is okay, musicians have as much right to fair pay as anyone.
The Live Performance Award sets the minimum wage for musicians at $38.65 an hour, but most artists are engaged under common law contracts—often verbal—that operate outside the Award. Nonetheless, the law requires these contracts to be fair, and the Award should serve as a guide for all negotiations.
PROTECT WHAT YOU PRODUCE
As soon as you write a song, you own the copyright to it; you don’t need to register or apply. But you do need to be able to prove it’s your original work if you intend to use it in any meaningful way.
Once you start writing your own music, the biggest legal concern for musicians is protecting that creative work.
“From a legal perspective, the way to best protect any rights you might have in relation to a song or a sound recording is to make it publicly available.”
In the digital age, this can be as simple as uploading a file to a site like SoundCloud. Be aware, however, that performing the song live doesn’t count—it must be stored in some manner, usually as a recording, or possibly as written notation.
Artists should also register with the Australasian Performing Right Association and Australasian Mechanical Copyright Owners Society Ltd (APRA AMCOS), as well as the Phonographic Performance Company of Australia Ltd (PPCA). Both organisations collect and distribute royalties to musicians, with APRA AMCOS operating industry wide, and PPCA dealing specifically with revenue from businesses licenced to broadcast recorded music.
Importantly, APRA AMCOS also work to protect your copyrighted material from unauthorised use and plagiarism by other artists. “Being with these organisations is all about controlling your own music,” says Kontoleon. “It means if somebody picks up your song, makes their own version and starts performing it, you know it’s happening and your rights are protected.”
IF IN DOUBT, JUST ASK
A resourceful musician can manage most of their business themselves. From recording, to marketing, to merchandise, it makes sense—and dollars—to control as much as practical.
Having said that, the guiding philosophy should always be: when in doubt, get advice. “In an ideal world where musicians have money, they go to lawyers,” says Kontoleon. “Unfortunately, that’s not always realistic, but there are other places you can go for help."
Too many musicians don’t go looking for advice because they don’t think it exists.
Kontoleon points to organisations like APRA AMCOS for starters, or if you are in South Australia, the School of Law’s free Legal Advice Clinic. Her book, Music And The Law, also provides a comprehensive summary of most legal issues affecting musicians in Australia.
“You need to take the administrative side of your music business seriously,” she warns. “It’s so crucial if you want your music to be valued, and if it’s not something that comes naturally to you, you really should get some advice.”
THE NEXT LEVEL: CONTRACTS
Like the ghost of lawyers past, one area in which Kontoleon urges musicians to always seek professional guidance is contracts.
“You should never sign anything without talking to a lawyer,” she says.
The music industry is notorious for tying artists to bad deals, but even a fair contract can pose serious restrictions, so it’s advisable to proceed with caution.
Never sign away your copyright, and be careful about the modern ‘360-deal’ in which a record label may pay for your album, but in return, demand a portion of all your musical revenue—from touring to T-shirt sales.
Similarly, be wary of contracts with a cross-collateralisation clause that allows the label to recoup the costs of one album from profits of other albums you make for them.
Most importantly, before you engage anyone—manager, distributor, agent or label—really analyse whether they can do anything you couldn’t do yourself. “For instance,” says Kontoleon, “unless you are a pure pop artist or an R&B singer, you really need to question whether a major label in this country has much to offer you.”
KNOW YOUR REGULATIONS
Like so much else in our cottonwool society, the live music industry in Australia is very heavily regulated. Venues looking to host live music must satisfy a long list of requirements, and artists need to be aware of their related responsibilities.
“A good venue will apply common sense to the regulations,” says Kontoleon, “but you also have to accept that there are restrictions about closing times, noise levels, alcohol and lots of other things.”
These laws vary slightly from state to state, so find out as much as you can about specific restrictions in your area. APRA AMCOS maintain a comprehensive online information service called Live Music Office, and Kontoleon stresses that being aware of these responsibilities is key to establishing good relationships with venue operators.
LICENSING MUSIC FOR BUSINESS
The copyright owner of a piece of music has the right to decide whether it can be used by a third party, for instance in an advertisement or soundtrack. In most cases, this right rests with the person who wrote the song, and in Australia, APRA AMCOS serves as intermediary between artists and interested third parties.
For something like a commercial, negotiations usually involve a particular track for a particular purpose, however, for businesses looking to use music more generally, both APRA and the PPCA provide a range of licences that cover everything from in-store music for retail to telephone hold tracks.
The licences carry very reasonable fees, the proceeds of which are paid to artists registered with the agencies.
“It’s a system that makes sure musicians get something back for their creative work, and businesses need to make sure they do the right thing,” says Kontoleon. Generally, APRA and the PPCA give fair warning about complying with licence laws, but fines can be issued, ranging from $1320 for small breaches right up to $302,500 and five years’ imprisonment for serious corporate infringements.