JENNIFER TUTTY JOINS DARREN SANICKI LAWYERS

For immediate release


29 April 2010 - Darren Sanicki Music & Entertainment Lawyers is pleased to welcome Jennifer Tutty and Jennifer Tutty Legal & Artist Services to the firm. A highly regarded entertainment lawyer in her own right Jennifer Tutty will join Darren Sanicki Lawyers as a Senior Associate.

Jennifer brings with her 8 years of legal experience including an internship as an in-house lawyer the ANZ bank and a 4 year stint with Melbourne firm, Media Arts Lawyers. At Media Arts Lawyers, Jennifer worked on client matters involving some of Australia's most exciting performers and brands, including Missy Higgins, Lisa Gerrard, Onelove, Madman Cinema, Pupperty of the Penis, Dicko and TV Rock. Jennifer also managed the firm's Trade Mark matters.

In 2009 Jennifer started her own law practice, Jennifer Tutty Legal & Artist Services, specialising in entertainment, Trade Mark/brand protection and commercial law for those working in the entertainment, creative and hospitality industries. Business grew quickly for Jennifer and it was only a matter of time before she needed the support of a bigger office and merging her practice with Darren Sanicki Lawyers was the perfect step forward for her. Jennifer is also part owner of Bush Music Publishing which represents techno and house music songwriters.

Darren Sanicki adds:
"The addition of Jennifer Tutty to our entertainment law practice boosts our already substantial ability to provide premier legal services to a broad range of clients spanning music, entertainment, design and the emerging world of new media. We are delighted to be working with Jennifer”.

Working a double life as a successful DJ in Melbourne, Jennifer has become the first port of call for many artists, DJs, labels, promoter’s, producers, touring agents, venues and performers working in Australia's vibrant electronic music and night-club industry. Currently, Jennifer is also the headline resident at one of Melbourne’s busiest club nights Fridays @ Onesixone. With such personal experience in the music industry, Jennifer closely relates to her clients and their needs.

The addition of Jennifer Tutty to Darren Sanicki Lawyers will broaden the scope of its entertainment and Trade Mark work, further enhancing it self as one of the leading Entertainment Law firms in Australia.

For further information contact Darren Sanicki darren@dslawyers.com.au or Jennifer Tutty jennifer@dslawyers.com.au or visit dslawyers.com.au

RELEASING AN INDEPENDENT CD

Artists and Bands (from now referred to as “Bands”) are realising early on the benefits of having a quality CD, not just to have a hit single or to make money, but for valuable marketing and promotional purposes. A great quality recording can help a Band develop its fan base as well as attract key industry players such as Record Companies, Publishers and Booking Agents. As more Bands are choosing the indy route, this article covers some of the basics to consider and when choosing to record and release an independent CD.

Like with most things, the planning stage is the most integral part of recording a CD. Bands need to research recording studios, sound engineers, CD manufacturers, graphic designers and printers. Before walking in the studio door, you need to be organised - after all, studio time is money! Bands should know exactly which songs they are going to record and have a feel of how they want the tracks to sound. Studio time should never be used for songwriting sessions, rehearsals or working out new guitar parts.

So once you have a great Master Recording, the question is what next? For a truly independent CD, you need to think about mastering, artwork, packaging and pressing however before doing so, think a step ahead to your proposed method of distribution.

1. Self Distribution: This is the true DIY model. Once you finish recording the CD, simply have it mastered, complete your artwork and organise the pressing of CD’s ready for sale. A Band’s typical “first pressing” is about 500 – 1000 CD’s. The most common method for a Band to sell its self released CD is at gigs and via a Band’s website or MySpace. While it would be theoretically possible to approach retailers directly (you would need to make sure you have put a bar-code on the CD), it is unlikely they would agree to stock them.

Of course there is the digital road too and there are loads of on-line aggregators and “wholesalers” that are easy to source such as Musicadium, TuneCore etc that can assist in making your music available on-line via the major on-line retailers.

2. Distribution Deal: A Distribution Deal with one of the bigger Distributors such as MGM or Inertia is one of the most common methods used by Bands to distribute their CD’s. A Distribution Deal is usually an exclusive agreement between you and the Distributor for the distribution of a particular album or EP. It will cover usually cover both physical and digital / on-line sales and is for a fixed term of (usually) 3 - 5 years. Often, the territory will be limited to Australia and New Zealand leaving you free to pursue other overseas licensing opportunities.

A straight Distribution Deal involves the Band literally dropping off a box of CD’s at the Distributor’s warehouse. Bands will need to check any packaging requirements such as the Distributor’s logo and bar-code requirements before pressing their CDs.

The Distributor then notifies its retailers via its usual methods that your CD is now available for sale and will take orders and distribute accordingly. The Distributor’s fee is usually around 25 – 30% of the wholesale price which will be set by you and the Distributor working together.

It is important to note that the extent of the Distributor’s role is adding your CD to its release sheet, making the CD available on-line, physically shipping the CD’s to stores and doing the accounting. There is no requirement in a standard Distribution Deal for any promotion or marketing to be undertaken by the Distributor.

The main disadvantage of this type of arrangement is that it is all funded by you and even if the Distributor sells your first batch of CDs, you will have to finance another pressing as it may be some time until you actually get paid. The main advantage is that you retain full control and ownership of your Master Recording. Distribution Deals are also easier to secure than traditional “Record Deals” given that the Distributor has little financial risk.

3. License Deal: A License Deal requires you to license your Master recording to a 3rd party be it a Distributor or more traditional Record Company for pressing and distribution. Depending on your ability to get the best possible deal, a License Deal may involve the licensee paying for mastering, artwork, pressing and even for the marketing of the CD. It would be an exclusive arrangement and unlike a straight Distribution Deal, may give the Licensee an option over your next recordings. The fee payable to a Licensee for this type of arrangement would be closer to 60 - 75% of net receipts. The advantage is that although you have paid for the initial recording, the Licensee typically pays for the rest. So while not strictly a “self release”, you are still required to make the big investment of recording the Master. Of course some Licensees will expect the Band to also complete mastering and artwork and have a marketing plan / budget in place so all that they do is the pressing and distribution.

The above DIY distribution easily account for how most music product is made and distributed today. The type of deal right for you will depend on each individual circumstance. Traditional Recording Agreements are certainly on the decline leaving open many opportunities for Bands to try out new and creative methods to have their music heard.

DIVIDING SONG CREDITS

Work it out and write it down

When writing with others it is important to have an agreement in place as soon as the song is completed or even before you begin. Ideally the agreement should be in writing although even a verbal agreement is better than nothing. Legal formalities are not that important and even some basic dot points on the back of a napkin will usually do the trick!

Of course for more complex band agreements you may need the assistance of a lawyer. Bands often have formal agreements among themselves drawn up stipulating how song ownership is divided among band members and how income deriving from songs (not the recording of the song, but the underlying musical work) is divided. There are a few common ways that bands deal with this issue.

The first method is that the songs are registered with APRA by the persons and in the percentages that they are written (APRA will generally be the only formal record of song ownership, collaboration or splits). For example, if the guitarist and keyboard player write a song together, they then register the song with APRA as 50/50 composers. They would each be entitled to 50% of the income derived from the song while the remaining band members would have no claims over ownership or income derived from the song.

Suffice to say while this is arguably the “fairest” method from the point of view of the songwriters, it is the least often adopted arrangement. Given that songwriting can be quite lucrative, attracting juicy nuggets such as publishing advances, the above situation automatically creates a division in the band between the songwriters and the “others”. This division can often lead to resentment from the “others” who may be earning significantly less money than the songwriters while devoting just as much time to the band. This is reported as the number one reason why many established bands break up.

The second way is at the opposite end of the spectrum. Regardless of who writes the songs, the band registers them with APRA in equal proportions and split all income deriving from the songs equally. While this method places an equal value on each band member regardless of contribution, the net impact of this can be resentment in the other direction! Not only have the songwriters forfeited their ownership or control of their songs they have also given away the major share of the song’s income to which they would otherwise be entitled. While bands such as U2 are reportedly famous for such an arrangement, the reality is that in bands where there are one or two principal songwriters, an arrangement such as this is rare.

The most common outcome lies somewhere in the middle of the above two scenarios. It is important that the songwriters in a band be rewarded for their skill and effort while also acknowledging the value and contribution of the other band members. It is common that the songwriters register songs with APRA in the proportions in which they are written. This gives the songwriters comfort that they still retain “ownership” of the song and have the final say over how the song is used. However, when it comes to income, it is common that all band members receive a share. An example may be that the songwriter(s) retains 50% of the income from the song while the remaining 50% is divided equally among the rest of the band. These numbers can of course be varied to suit any particular situation and are completely negotiable.

Songwriters should note that as a general rule, a “song” consists of 50% music and 50% lyrics. Rule of thumb (and at the risk of offending those writing great guitar licks!) is that the music component of a song consists of the song’s melody. This however is open to vigorous debate and would most likely be decided on a song by song basis.

Where one person has written music and the other lyrics, composers will choose to note their interests either “jointly” or “collectively”. A “collective work” will separate the ownership into a musical and lyrical component with each party able to deal with their respective copyright separately and in their discretion. “Joint” ownership is where the musical and lyrical contributions cannot be separated among the co-writers giving each composer 50% ownership of the music and the lyrics.

It is clear from the above that a band needs to consider in the early stages how they will deal with the issue of song writing, if for no other reason than to avoid painful arguments down the track. When collaborating with others we definitely recommend keeping a personal journal noting completed songs, the relative contributions and any agreements reached. You’ll be thankful you did!