What They'll Never Tell You About the Music Business

by Peter M Thall

  • How does the firm resolve the issue of conflict of interest in the event that it sets up relationships with other clients in your area?

  • How does the firm charge for services, and what are the rates (1) of the partners and (2) of lower-level associates and paralegals?

  • When rates are about to change, does the firm advise the client?

  • Does the firm request a retainer (an advance against fees), and how is it calculated (for example, does it reflect hourly rates times an estimated number of hours that will be invested before the retainer will have to be “refilled”)?

  • What are the firm’s, and the artist’s, short-term and long-term goals?

  • If the agreed-upon goals are not fulfilled, or are not fulfilled in a timely fashion, is the unused balance of the retainer returned?

  • How are nitty-gritty details handled? (For example, when the firm “shops” a demo, does it copy the artist on the correspondence? If contacts are made via email or telephone, is it the firm’s policy to provide updates on each contact, or periodically on a quantity of contacts?)

  Although it may appear so, I am actually not suggesting that as a potential client you interrogate potential legal representation with a machine-gun barrage of questions. Needless to say, no one wants to be subjected to this kind of questioning. And you are still the “seller,” not the “buyer,” so you will have to be somewhat more circumspect in your approach. Nevertheless, these are all questions that need to be explored and eventually answered.

  PERSONAL REPRESENTATION

  Chapters 5 and 6 cover many of the issues to be considered in selecting both personal and business managers. Though personal managers are not subject to the same rigorous licensing procedures that attorneys must pass through, a good personal manager is more likely to be a ticket to a deal than virtually any other type of professional in the entertainment business. But, as you read on, remember that your attorney of choice can be changed easily and often. In contrast, artist–personal manager relationships are usually sealed by long-term written agreements.

  Other than retainer agreements establishing what services are being provided, and which are not, and the fee structure between the client and the attorney, written agreements indicating the expectations of clients are practically nonexistent. Even when an attorney agrees to work for contingent percentage income, the percentage is traditionally considerably lower than that sought by managers, and often covers a specific transaction rather than a career. In contrast, most personal managers feel it is foolish to invest their time and facilities, not to say money, in assisting an artist in career development without some contractual commitment which covers the scope and length of the artist’s entire career.

  Finding a Personal Manager

  Barry Bergman, the founder and president emeritus of the Music Managers Forum—United States, (MMF was formerly IMF International) was once quoted as follows:

  Occasionally, someone will ask me if I’m in charge of our country’s financial assets. I often look at them and in a very serious tone respond by saying “yes.” After all, what greater assets do we have in our nation other than our artists, writers, producers, and musicians? We must never forget that without the musical creators there would be no artist managers, no record retailers, no record manufacturers, no record distributors, no industry…no kidding.

  Now that is the kind of manager you want! Unfortunately, finding a good personal manager is not as easy as finding a good attorney. Law firms can—and do—“manage” hundreds of clients. But personal managers traditionally manage three or fewer clients who pay the bills; those managers with any reasonable amount of experience have very little time to explore the possibilities of exploiting the potential career of a start-up client. Most often, artists take a chance on managers just as managers take a chance on artists. The most useful advice I can offer is that you not entangle yourself too quickly or for too long a period, and that anything you sign, or agree to, be reviewed first by an attorney familiar with the entertainment industry.

  You can start your search on the Internet, with the Music Managers Forum (MMF) at www.​mmf-us.​org. They can provide you with a head start on finding out about management opportunities and possibilities in many American cities and several foreign countries.

  DEAL MAKERS: WHY YOU NEED THEM

  There is something to be said for the fact that both attorneys and managers customarily socialize with executives and A&R (artists and repertoire) people at record companies (as well as with the business affairs staff with whom they may eventually be negotiating the record deal). The value of the “lunch deal,” which is characteristic of virtually all businesses, is particularly consequential in the entertainment business, where ideas, not products, are the coin of the realm. A badly presented film script may never be taken seriously by the film company. A demo tape, CD, MP3 file, or link to YouTube or SoundCloud, which is presented to the record company by anybody other than someone credible, may never even get a listen. But when the material is presented by a credible and powerful representative in a way that the representative knows will be well received and reviewed, an artist or a songwriter with promise has a chance. Perception may not be everything, but don’t underestimate it. In a world of images, artful and effective presentation is compelling.

  Don’t Worry, Be Wary

  In a classic lunch deal, an agent approached one of his clients, a film actor whose last film (for which he was paid minimum scale) was a big success, to recommend an offer. A film company executive had told the agent (at lunch) that he was interested in optioning the actor for three more films—at $100,000 each. This sounded fabulous. However, the actor’s attorney determined that the “three picture” deal was really a “no picture” deal. The film company did not have to make the films if it did not come up with acceptable scripts, budgets, costars, etc. In the meantime, the actor would be tied up. The actor declined the deal, and lo and behold, a few months later, with his tail between his legs, the agent called to tell the actor that the film company wanted to do a sequel to the actor’s first film (which you will recall was a big success) and it needed the actor in order to produce the sequel. The fee that was ultimately negotiated? One million dollars and a percentage of the profits.

  Now, of course, this benefited the agent as well as the actor. Why then, would the agent have recommended the “three [no] picture” deal? There are plenty of reasons, not the least of which is that a deal in hand—even a no-picture deal—is sometimes perceived to be worth more than no deal at all. One of the reasons agents are so valuable (and so valued) is their relationships with the buyers of talent. Of course, having such relationships is a perquisite of being a successful agent, but it can also be an affliction for the actor or artist to endure. This is all the more reason to have an attorney who is independent of the agent and who can operate as a check and balance for the client.

  Similarly, in the music business, who will provide this kind of protection if the artist has only an attorney, but no personal manager? Managers are not so quick to jump on an artist’s bandwagon when the band’s wagon consists only of a motley crew (pardon the pun) of guitarists and drummers without a recording of any sort, or even a touring van. So the novice artist may have only one person guiding him or her. And that person is often an attorney. The healthiest situation is for a sufficient number of professionals to be engaged to guide an artist so that they each serve to keep an eye on the others. Checks and balances. Each advisor provides this service and the artist is the better for it.

  However you look at it, when you put all of your eggs in one basket—any one basket—the eggs may come out scrambled. Behind all successful artists is a team that works more or less in synchronization to assist them in identifying and in reaching their goals. You have heard the Academy Award winners, the Emmy Award winners, and the GRAMMY Award winners thank these people, but now perhaps you can better understand why these faceless individuals garner so many thank-yous at awards ceremo
nies. Building a working team is a daunting challenge, second only to the act of creation itself in importance, but one that must be met.

  DEAL BLOCKERS: HOW TO GET PAST THEM

  There is no sure way to get a deal in any business. This section is not directed at artists who are creating a sensation in their home region and are attracting broad interest from various industry personnel around the country. Most artists who call upon the assistance of attorneys and managers to “shop” them—that is, to bring them, in an effective manner, to the attention of a record or music publishing company—have no such advantage. If you are a novice in the music business, three things work against you in your pursuit of a deal: insufficient time to develop your material, insufficient representative material, and insufficient attention by your representative.

  Making Time

  As I indicated earlier, it is also necessary for you to stay in the ring as long as possible to work on your art. Unreasonable and artificial time limits will work against you. Naturally, you have to eat; yet any day or night job will interfere with the time that needs to be spent on your efforts to manifest your talent in concrete form—songs, tapes, or CDs—or performances. Therefore, the squeeze is on. You must find a way to block out hours each day, seven days per week. You have to sacrifice everything that might distract you from your goal. In addition, you must have a sense of your direction.

  Everyone wastes time. The secret is to know how to manage it—setting priorities, putting first things first, and following other rules of life you first heard (learned?) from, of all people, your parents. Perhaps it is enough simply to have this issue identified, because once the words “time flies” are posted on the mirror, the avoidance of waste becomes possible. However, although none of us experiences time in precisely the same way, most of us have jobs, salaries, projects to complete, etc. We do not have to self-start. We have a place to go at 9:00 a.m., lunches and dinners to eat (and meet at), meetings and conferences to attend. Not so with artists, who must learn to be proficient at managing time—whether “down” time or “up” time. They must understand, experience, and manage time in ways that the rest of us would never comprehend. Artists’ comprehension of time is directly related to their ability to achieve their goals.

  Building Your Material

  Never think that whatever stock of creative materials you have on hand at any given moment will be sufficient to interest a company. You must continue to write, to perform—in a word, to develop your craft. Nothing disappoints an A&R person more than to hear a band months after its initial presentation and realize that there are no new songs, or that the arrangements have not evolved.

  The more you perform, the more you improve your art. Why? For one thing, the mere process of playing in front of an audience constitutes a self-criticism that cannot be accomplished any other way. Self-congratulatory artists who decide that their creation is sacrosanct—locked in concrete—will not appeal to a record company or, in the long run, to the public.

  Monitoring Your Representative

  Once a representative has agreed to work with you, it should not take long to structure an approach to record and music publishing companies, to follow through on the approach, and to draw conclusions from the effort. Remember, though, the shopping function is both a privilege and a burden. Time passes; holidays intervene; people who work with a volume of beginning artists have to figure out how to organize approaches to the record and music publishing companies and then to coordinate them with the companies’ responses, if any. When a representative is truly snowed under by other work, especially for “paying” clients, no amount of frustrated calls, emails, faxes, chocolates, or cajoling on behalf of an artist will be effective in getting the representative’s attention. The truth is that you must set your own time limits and, if necessary, switch representatives regularly. You are, after all, number one on your own priority list and you must act accordingly.

  STAYING THE COURSE OR CALLING IT QUITS

  And now to the ultimate decision. When to give up! For every one hundred records on the charts, there are tens of thousands of demos filling our trash dumps or MP3 files freezing our computers waiting for the delete button. And they belong there. Why? Because they are not good enough. Now, there is no universal standard for determining what is good enough or what ought to be a hit. But, by definition, if your record does not take off, it isn’t good enough. This is, of course, a psychological truth, not a real truth. Your recording may be perfect, but if it is not a hit, it is not good enough. Good enough means successful. If it is not successful, it is not good enough. This does not mean that the “essence” of the recording is not fabulous. It only means that the recording, taken together with the efforts and talent of the record company, the manager, the attorney, the publicity firm, the radio promotion people, etc., has no potency.

  I was standing in the back of a theater a few years ago with the writer of the book and lyrics of the musical comedy Annie. The writer had an enormous reputation as a comedy writer for television, magazines, etc. If anyone knew what constituted a joke, he did. We were watching a preview of the musical a few days before the official Broadway opening. The actor on stage spoke a particular line that was supposed to be funny, and no one laughed. In fact, they had never laughed at this line. Having represented the “orphans” for more than a year, I had seen the show in its developing stages at the Goodspeed Opera House in East Haddam, Connecticut, and then at the Kennedy Center in Washington DC. This would have been my twentieth time hearing the same line that received no laughs. The book writer mumbled something which I could not make out. I asked him, “What did you say?” He said, “I guess it’s not a joke.” I said, “I guess not.” The writer was not worried. He had a suitcase of lines that were jokes, so he never looked back from his Tony Award and he continued his illustrious career.

  At any rate, the writer left the line in, and certainly it did not keep the play from becoming a big success, with a five-year run followed by a film, multiple revivals, and even another film. This does not change the fact that the line read like a joke and sounded like one. But it wasn’t. You might think back to this story when you are hanging on tightly to a song or a recording that you “know” is a hit but is going nowhere. Maybe it’s not a hit.

  Like our writer, you may have a trunkful of songs. You may even have had a brief run on the charts with a song or two. But sooner or later, you have to confront reality and decide whether what you have accomplished is good enough.

  A final point. A hit is a hit only after it has become a hit and after the artists and producers have been paid and have deposited the checks, and the checks have cleared the bank. This confluence of events may not occur until years after the climb up the Everest that is the Billboard 100. Or, as we will see, it may be a longer wait than that. Get as excited as you like when it appears that your song is a hit, but don’t believe it until all of the above have occurred.

  You have to determine for yourself when enough is enough, when it is time to quit the ring. The art may be there, but the execution may have failed. The art may be there, but the money may have run out. The art may be there, but the patience may have expired. My best advice to artists who are contemplating quitting is to seek counsel from friends and, in particular, friends intimately involved in their profession—band mates, agency and record company personnel, even club owners who originally supported them. Record and publishing companies are populated by artists who quit pursuing their own careers. They have found a way to express their artistic ideas in a different arena. And no one need stop creating just because he or she determined that a full-time career as a creator is not in the offing. The world of music is filled with stories of composers and performers who blossomed late in life. Perhaps a heavy metal career for a forty-year-old is not in the cards, but there are certainly other possibilities.

  2 • INVESTORS

  The High Costs of Low Finance

  A bank is a place that will lend you money if you can pro
ve you don’t need it.

  —ATTRIBUTED TO BOB HOPE

  It is extremely difficult for struggling artists to be heard by the powers that be. Just as a song needs to be played on the radio (or available on YouTube or Facebook) in order to sell records, artists need to be seen, heard, auditioned, or played on a CD player, an MP3 player, or via YouTube or other streaming video and audio sites in order to sell themselves. This costs money, and there are individuals and companies willing to lend artists money or facilities in order to assist them in positioning themselves so they can be effectively auditioned by the ultimate buyers of talent: the record companies.

  THE COSTS OF BEING HEARD

  Fledgling artists need to be seen as well as heard. Record companies need to know that the sound and emotion they hear on a demo can be reproduced with sufficient virtuosity live (1) to electrify an audience when on tour and (2) to convince the public that the artistry on the record has not been faked (remember Milli Vanilli?). It is neither cheap nor easy to gather together musicians for a showcase at a live club or in a rehearsal hall. An already organized band has it hard enough; it is even more difficult and expensive for a solo singer to replicate what can be manufactured on a CD with sophisticated recording techniques.

  Prior to the technological revolution spurred on by MySpace, iTunes, and subsequently Spotify, Pandora, YouTube, Tidal, and SoundCloud and other delivery systems, showcasing one’s music was achieved only via a live performance or a demo, and these traditional forms remain the predominant way an artist can spread the word. Computers and the digital evolution have not done away with those who have to input information, as green-peaked accountants did for the past several hundred years, and the Internet has not done away with the need to create an effective product constituting the musical performance.