Tips on Hiring an Entertainment Law Attorney
The problem that many entertainers face in their careers is that they never receive the formal announcement stating, “Okay, now is the time you need an attorney.” Of course, it would benefit any entertainer, actor, musician, artist, to have input from an attorney from the very beginning so that he/she might better avoid traps and pitfalls. But that would mean spending money he/she might not have and “hiring a lawyer” slides way down the priority list.
The fact is, entertainers form contracts and incur obligations without ever knowing it and for the most part they are never worse for wear. I have found most music and art scenes to be peaceful meccas of free-flowing ideas and partnerships – the way it should be. Having a lawyer running around in the mix would completely ruin the vibe. Sufficed to say, in looking at the numbers of those pursuing entertainment for a career, the majority never call on an attorney. But then there are those who wish they had.
I cited the White Stripes case in the last post and I like to think it’s one of the best illustrations of why (and when) one would need to hire an entertainment attorney. The case involves record producer Jim Diamond, who owned a studio in Detroit, Michigan and was recording local acts in the late 1990’s. As Diamond describes it, he was immersed in the scene that functioned less as in incubator for promising, young money-earning musical acts and more of a collaboration of “buddies you drink with who happen to be in a band.” He recorded and co-produced the first two White Stripes records which were released on a small indie label and apparently (like most records) did not generate any money. The White Stripes registered themselves as owners of the records with the U.S. Copyright Office (without granting Diamond any ownership or agreeing to pay him any royalties) and then they signed a deal to re-release the records through Third Man Records, Inc. That contract lead to a deal worth millions of dollars. Although Diamond was credited as co-producer, he never earned any royalties and there was no written contract between the parties.
Music scenes thrive on a barter economy – you don’t have enough money to pay a horn section to play on your record so you just offer to play guitar on theirs. As a young producer, I would take a huge fee cut in return for production credit that in turn could be used to attract other bands. The problem is – and as Diamond puts it – “you never think anyone is going to become a mega-star,” and so getting everyone to sit down and sign a contract when they are barely managing their rent is not a reality. But after years of litigation, the loss of a five or six-figure income, and having to pay probably five figures in legal fees, I would think Diamond wishes he had called a lawyer in 1999.
So understandably there are many questions relating to a) when one should seek counsel from an attorney and b) what one should consider when hiring an attorney. To help, I’ve fashioned a few tips through the years that I think have proven to be helpful:
- Tip 1 – Most obviously, if someone throws a contract in front of you or if you’re working on anything that involves copyright, call a lawyer. Many local bar associations have pro-bono programs, as do some larger law firms particularly in metropolitan areas.
- Tip 2 – Decide for whom you are calling the prospective attorney. If you are an author calling on your own behalf then there really is no issue – the representation will be clearly defined as the lawyer would represent you and your interests. However, if you are collaborating with another writer, artist or musician (i.e. as co-authors or band members, etc.), you need to decide if you are seeking counsel with regard to the bands’ interests or to your interests alone. If the lawyer ends up representing the group, she is ethically prevented from representing your individual interests to the extent they are adverse or divergent from those of the group. If you really want advice on your interests specific from the group, let that known up front.
- Tip 3 – Talk to a lawyer who specializes in your field, whether it’s literary publishing, music, or visual arts. The deal points and nuances can be specific to those disciplines and most lawyers will be very quick to qualify their expertise to avoid unfamiliar territory and potentially harming their clients.
- Tip 4 – Try to find a lawyer who is located in your town or within driving distance. Many practitioners prefer to have face-to-face meetings with their clients (for good reason). In my experience, meeting clients in person always seems to bring out issues that telephone conferences cannot. Also, the law governing contracts is usually specific to the state where the contract is entered into and so if you’re signing contracts close to home, find an attorney close to home.
- Tip 5 – Decide what you want out of your attorney. Many prospective clients look for attorneys who can “shop” their talents to record companies, film studios or publishing companies. However, while some entertainment attorneys will agree to do this, not all will. If this is what you want from your attorney, make sure you advise him/her up front. It can save a lot of time and potentially a lot of money.
- Tip 6 – When calling an entertainment attorney for the first time, don’t omit facts you think the attorney doesn’t need to know – and especially don’t omit the ugly facts. In most cases, communications with your attorney, or prospective attorney, are protected by the attorney-client privilege and cannot be shared with anyone else. Leaving out something like, “oh yah, Joe also wrote part of this tune a few years back but we haven’t seen him in a while so I figured it wasn’t important” could allow the attorney to head down the wrong road and could end up costing more time and money… and could adversely affect your outcome.
- Tip 7 – Finally, I cite the old adage that time cannot seem to dissolve – an ounce of prevention is worth a pound of the cure. I often encourage young artists and musicians to invest in a basic, introductory consultation with an entertainment lawyer when they are getting started. Even if it costs a few hundred dollars, it’s hard to justify not making that appointment when you’ve placed all of your life’s chips on pursuing your passion without any insurance policy. That consultation should hopefully give you the lay of the land so that you can avoid some of those traps and pitfalls. It’s not to say you will thenceforth go out into the world slinging contracts and legal jargon around – but you’ll at least be able to make an informed decision as to when to get an attorney involved. Jim Diamond might agree.