Music is an important part of my life and representing musicians is an important part of my practice.

In my early years (the 1970s) I was part of a rock group that signed record contracts, management contracts, toured, etc. I developed a negative attitude with respect to "the suits" –– the managers, the attorneys, record company executives. I felt that the musicians, producer, recording engineer, were the ones that really created something of great value –– the music.

In the late 1970s I became a lawyer. Throughout the years I have always kept a close watch on the music business and the continuing development of intellectual property law as it applies to musicians. Over the many years I have been a lawyer I have come to realize that my skills are needed to help musicians in dealing with these business people. So I encourage musicians on all levels of commercial success to contact me for assistance.

So what does a musician or a band need a lawyer for?

My typical client is a band. It is very important that they get properly organized as early on as possible.

One of the first things a band usually does is choose a name. Then the band starts investing its time and money building up a following. Shouldn’t you make sure you can own this name before you start upgrading your equipment, rehearsing, playing live, recording, designing CD sleeves, getting Myspace friends, etc.? What if, after you spend hundreds of hours doing all that, you find out that another band in Florida already is using your name?

Most bands Google the name to see if anyone is already using it. This is helpful but not adequate. You should consider havings me (or an outside service) perform a search to see if this name is already in use. It doesn’t matter if someone already thought of your great band name and put up a Myspace. It does matter, however, if another band is already using the name.

There are many ways to protect a band's name.  One of the most important is by applying for a Trademark with the Federal Government.

There is a wealth of information relating to obtaining a trade mark with the Federal Government on the web site for the United States Patent and Trademark office.

http://www.uspto.gov/main/trademarks.htm

Of course, you can use the name of your band without actually obtaining a trademark. In fact you can place the abbreviation TM or SM (service mark) after your band’s name even if you haven’t applied for a trademark. You may even be able to legally stop another band from using your band’s name even if you don’t trademark the name. But if you take the trouble to trademark the band’s name with the Federal Government there will be certain advantages including the following:

One advantage is that you can sue in Federal Court if someone violates your trademark rights.

Another advantage is that when you get to court there will be a "presumption" that you have the exclusive right to use the trademarked name. Having a "presumption" on your side doesn’t mean that you will necessarily win your case in court but it means that the other party needs to offer evidence they have superior rights to you. Also when arguing to the judge or jury your attorney can point out that you have this presumption and that may sway the judge or jury to your side.

Before you start the application process you can search to see if someone else has applied for a United States Trademark. You can search on line with the United States Patent and Trademark office

http://www.uspto.gov/web/offices/ac/ido/ptdl/index.html.

Or for a more thorough search you can hire a trademark research service. This may be a good idea because someone else may be using the band name you wish to use but has not gotten a United States Trademark. This is called a "common law" right. A common law search involves searching records other than the federal register and pending application records. It may involve checking phone directories, yellow pages, industrial directories, state trademark registers, among others, in an effort to determine if a particular mark is used by others when they have not filed for a federal trademark registration. A common law search is not necessary but some find it beneficial.

If you want to apply for a U.S. Trademark the best way to do it is on line. The Trademark office has a system called Trademark Electronic Application System (abbreviated as TEAS).

http://www.uspto.gov/teas/index.html

Unfortunately it takes a year to several years for the application to be approved by the United States Patent and Trademark office. But they last a long time. Between the 5^th and 6^th year after the initial registration you need to file a paper called an "Affidavit of Use" and then every 10 years thereafter that you still want protection for the name. You also need to file new registration applications.

The United States Patent and Trademark office divide the various products and services into "classes". The service that a band provides would put it in CLASS 41 (Education and entertainment).

Most bands simply want their name to be protected not any particular style of characters or image. Some bands want to protect a style of character or an image or logo. The Rolling Stones have trademarked the famous tongue and lips logo designed by John Pasche which the Stones have been using since 1971.

If all you want to do is Trademark the name of your band and you aren’t concerned about the particular style of lettering then you submit a "standard character drawing" which is not a drawing at all. But that’s what they call it. If you want to have a special style of character or logo then you need to submit a clear drawing of it.

While all this is not extremely difficult many bands chose to allow me to obtain trademark protection for them.

Very early on you should pick a form of business entity for your band. The alternatives boil down to the following: partnership, corporation, LLC. Take a look at the general business law section in this website for a complete explanation of the differences.

Most bands want limited liability after they think about the question for a while. As we all know something like the following could happen: The singer, guitar player, bass player and drummer are up on stage performing. A roadie decides he’s going to launch a pyrotechnic display. Or maybe set off a cherry bomb or two. The club catches fire and burns to the ground resulting in death and destruction. People sue the band and its members for millions of dollars. The band members can protect themselves from liability if they have the proper choice of business entity and if they conduct their band business properly.

A partnership gives the band members no protection from liability. But it is relatively inexpensive to set up. It is also simpler from an income tax prospective than a corporation or LLC. If the band members do not care about the risk of liability then a partnership is OK. But it is important to have a written agreement among the band members, a "partnership agreement", as discussed later on this site.

If the band members wish to reduce the risk of liability then they should conduct the band either as a corporation or an LLC. If the band chooses to operate as a corporation then it will either be a "C Corporation" or an "S Corporation".

LLC, S Corporation, C Corporation? This decision is usually based on tax considerations.

For example, in the case of a C Corporation there is double taxation –– once when the corporation makes a profit and a second time when the profit is distributed to the shareholders as a dividend. But this may be OK if the corporation’s tax rate and the shareholder’’s tax rate on dividends (15%) is lower than the shareholder’s tax rate on ordinary income.

An S Corporation has the advantage that there is no taxation at the corporate level. There is also a way to avoid some self employment tax by paying some of the income to the shareholders as distributions and some as salary. An LLC accomplishes much of what an S Corporation does but there is a gross receipts tax in California that a corporation does not pay.

The choice of entity obviously must be made by an attorney and a tax expert together. Fortunately, I have an in-house C.P.A. (my wife Michelle K. Feinstein, C.P.A., who also happens to be a working musician).

As mentioned above it is important to have a written agreement among the band members. In the beginning, hopefully, everybody is in agreement. Or if they’re not all in agreement one or more members are in control of the band and the other band members allow the controlling members to make the decisions. At some point, often when the band becomes commercially successful, disagreements arise. You need to have a written agreement to resolve these disagreements or the band will break up.

You should agree in advance how disputes are to be resolved: Does the band follow the will of the majority? Are decisions made by unanimous agreement? Can they be made by a neutral 3d party? There are many possibilities. The point is you should figure this out (with my help) when you are all getting along –– not when you are at each other’’s throats.

Also, what if a band member wants to leave? Does he receive any compensation for the interest in the band he is leaving behind? What if he claims such a right and the rest don’’t agree? You had better have an agreement.

What if a band member dies or goes insane? Do his heirs or family members receive any compensation for his interest? For a band that doesn’’t earn much money this may not seem to be anything to worry about. But you could become hugely successful and it could become an important issue. This should be addressed in the agreement.

If the band breaks up who gets to keep ownership of the name?

At some point the band may wish to retain the services of a manager. We’ve all heard stories of managers taking advantage of bands through unfair contracts. I can negotiate the contract for you.

A number of bands have recently been targeted by the IRS. Many of these bands are not "big names". Often they are bands that do not earn much and do not have the resources to hire expensive accountants and attorneys to fight the IRS. Here is an increasingly common scenario: A band plays clubs, concerts, corporate events for years making a moderate income. The band is led by one or two musicians who procure the engagements, round up musicians for the gigs (these musicians work as independent contractors) take in the money and divide it up among the independent contractor musicians. At the end of each year the band leaders file 1099s for each musician that has been paid during the preceding year. Then disaster strikes: The IRS audits the band and reclassifies the musicians as ""employees"". The IRS sends the band a big bill for past due payroll taxes and penalties.

You really need to avoid this problem. Proper planning is essential. Filing 1099's is certainly no protection.  You need independent contractor agreements, the independent contractor musicians should invoice the band for their services, they should have a business card, the independent contractor musicians should have their own web site or Myspace indicating that they are available to be hired by other bands.