The Do’s and Don’ts of the Music Business

By: Michelle M. Wahl, Esq.

“What does it take”, they ask me. “How do we make it in this business”, they ask me. “What are we doing wrong”, they ask me. If you are among the “they” that have already sought out answers from me on these questions, or if you have not but find yourself wondering the same things, then read on.

What does it take to make it in the music business? Well, for starters, talent. Pure, raw talent. Uninhibited, natural, unique talent. Of course, so much talent can be and (unfortunately) has been, manufactured in the studio.

Through today’s technology, even I could be made to sound like a superstar (and for those who know me, that is a pretty scary thought). But, a true artist, one that endures through time and change, is one that has unadulterated talent.

So, my first piece of advice is to make sure when you record, you are not only ready to do so in the studio, but that your sound vocally and instrumentally carries over to the live stage.

When you give a live performance that mirrors what is heard on your record, you not only retain fans and possibly obtain new ones, but you establish credibility. And credibility, my friends, can go a very, very long way in this industry.

Besides talent, you need patience. Superstardom seldom comes over night and for most blessed with that luxury, it is typically short lived and leaves you with the “one hit wonder” label. As such, you must pace yourself, set short term goals, always keeping the big picture (i.e. long term goals) in sight.

Patience does not come easily to most (me included) but it is imperative in this business. Like most industries, this is one that generally requires you to pay your dues before you climb the corporate ladder.

In other words, you have to hit the streets to promote yourself, you have to have a social media presence, and you have to play the venues that offer you a slot, including the small coffee shops, dungeon-like basements of dive bars, and the like.

You never know who may be there, who is listening, and who is watching your every move. Maybe the owner of that local dive bar is related to an A&R representative at Warner. Maybe the coffee shop barista has a contact at a publishing house.

Every show you play, no matter where, no matter when, should be played like you are performing at Red Rocks in front of thousands. That brings me to my third suggestion – watch what you say and who you say it to.

It many instances your reputation is all you have in this business, especially at the start of your career. If you are acting like a pompous ass or are sloppily intoxicated while performing, the likelihood of you being asked to return, is slim to none.

As cliché as it might be, remember to treat others as you expect to be treated. Be kind, be courteous and be respectful. You have not achieved a level of stardom, so do not run around acting like you have or you will undoubtedly put the kibosh on that goal.

Now that we have some basic principles laid out, I bet you are wondering how you can actually make it in this business. As much as I hate being the bearer of bad news, often times it is who you know and being at the right place at the right time.

I know, don’t shoot the messenger. However, there are also many, many instances of artists who “made it” by investing in their careers (and not solely financial investments).

You have to commit, you have to sacrifice and most importantly, if you are in a group you must ALL be on the same page. In other words, do all members of your band hope to achieve the same end result, whatever that might be? If so, you are already ahead of the game. Now it is time to get your ducks in a row.

Here is where my lawyer mode really kicks in – DO NOT SHARE YOUR MUSIC UNTIL YOU HAVE PROPERLY PROTECTED IT. And for you “newbies”, that does not mean the “poor man’s copyright” of mailing it to yourself.

All that tells me is that you mailed something on a particular day (and more importantly, there is no provision in US Copyright law that affords you protection for having done so).

Instead, properly register your works with the U.S. Copyright Office and put the public on notice that you are claiming ownership and exclusive rights to those works. Moreover, if you want to protect your name, investigate whether federal trademark registration is an option available to you.

Next, delegate, delegate, delegate. One person in a group cannot take on all responsibility. Trust me when I tell you – at some point, that person is going to get upset and that can put a wrench in an otherwise amicable group. Decide who will do what and hold them accountable when they fail to act accordingly.

How do you do so? A well drafted intra-band agreement! Often times, bands talk to me about arguments between members that have raised questions as to what happens if/when a member leaves, who owns the band name, what about music produced during the time the member was a part of the band, but sold after the difficult member has parted ways?

An intra-band agreement can address all of these issues, from the start, and before an argument and/or issue ensues. This is an agreement you want drafted and executed during the “honeymoon” stage of the group.

Be proactive! While everyone is giddy and excited about the band forming and writing/performing music together, suggest that you have this agreement drafted and signed by all parties.

This way, it is binding, enforceable (presuming it is written properly) and addresses potential issues before they even arise. In my opinion, it is often a red flag if someone takes issue with executing this type of agreement.

Once your ducks are in a row, you can then venture out, start playing shows and promote yourself on various mediums. Do your best to not over-saturate the market. Start playing local venues and building a local following.

From there, venture out to regional shows. The idea is to have a good turnout. Unless you are the house band, playing the same set list for the same venue every weekend is unlikely to give you the exposure you need to be recognized by those that might be able to catapult your career into the next level.

Gain momentum, start small and keep building. Remember to follow-up and build a positive rapport with local industry people (remember what I mentioned about “reputation” earlier?) Follow through on promises, be mindful of other’s schedules and abide by the commitments you made.

Arrive for sound check on time, play your set at the scheduled time and for the agreed upon duration, etc. When you act like a professional in this business, you are more inclined to be treated like a professional.

Also, when promoting your music, do not be afraid to give away some freebies. Often times those unfamiliar with your music will not give it the time of day if they have to pay to listen to it. So, toss some EPs out at live shows, hit the streets during festival season and/or host raffles and giveaways through your social media sites. These are just a few ways to gain exposure and broaden your fan base. If you feel as though you have done many of these things to no avail, maybe it is time to explore what you might be doing wrong.

As noted above, a few ways an artist or band can make achieving stardom all the more difficult include acting like rock stars when the largest crowd you have played for is fifteen people, failing to show up and deliver as anticipated, acting like drunken buffoons when you are being compensated to perform, and making promises you cannot or do not keep.

Keep in mind that the respect I implore you to show others exceeds beyond the industry personnel, but also to other artists and groups you work with. In other words, treat bands on your bill with respect (i.e. make sure they get the agreed upon set time and play for the agreed upon duration, and pay them what you promised). Often this business is a “you scratch my back and I’ll scratch yours” arrangement. Do not burn bridges…you never know where they may lead.

Also, maybe it is time to reevaluate your passion, desire, interest, level of commitment and all the same for the members of your group. Just like any other relationship, people can and do grow apart. If differences between members of a group are either leading the group down the wrong path or leaving the group stagnant, it is time to pull out that good ole’ intra-band agreement and determine what options are available to you.

Another consideration relates to your “team.” If you have been working with an agent, manager, lawyer, or anyone else retained to help facilitate your success in the music business, and you feel as though he or she (or the company itself) has failed to do so thus far, it is time to reconsider that relationship. For lawyers, you can essentially terminate at any time, for any reason at all (although in most cases, you would still owe reasonable legal fees earned to date).

Agents and managers typically require some sort of agreement with their clients before they begin their representation and those agreements generally provide a termination provision. For example, maybe you had a “key person” provision that allows you to terminate the relationship if Mr. X leaves the agency (and yes, when considering the best interests of the artists, I am a huge proponent of this term).

Review your contracts to determine what options are available to you. For those of you who feel you have heeded to my above suggestions but still no bites, maybe it is time to think about retaining a manager, agent and/or promoter. Assemble your team using credible individuals and of course, get your relationships with those individuals/businesses in writing. This way, you can focus on what is most important to you, writing and performing your music.

In sum, this article gives you a glimpse into this business, what it takes and what you may be doing wrong. It does not, however, include all things right and all things wrong. Thus, you must remain driven and passionate, and you must always be aware of your surroundings and whether those around you are helping you attain success or just throwing hurdles in your path. Although there are no guarantees in life, let alone in this business, hard work does pay off for some and it will definitely lead you in the right direction. Drop the sense of entitlement, invest in yourselves and your future, prioritize and keep on keepin’ on. The rewards just might be endless!

By: Michelle M. Wahl, Esq.

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Michelle is a Partner at Swanson, Martin & Bell, LLP and is licensed in Illinois and Indiana state and federal courts. With a Masters of Law in Intellectual Property, Michelle is the Vice Chair of the firm’s Entertainment and Media Practice Group and a member of the firm’s Intellectual Property Litigation and Transactional Services Practice Group.

Her copyright and trademark practice focuses on intellectual property prosecution and related transactions, including performing trademark availability searches and providing advisory opinions, as well as preparing and filing trademark applications with the United States Patent and Trademark Office, and copyright registrations with the United States Copyright Office.

Michelle also assists with the oversight of the firm’s extensive trademark docket and conducts required monitoring and maintenance of clients’ trademark portfolios, as well as provides clients with corporate counseling and innovative corporate solutions to address their respective needs.

Michelle further provides comprehensive representation in the drafting, negotiating and executing of various entertainment-related contracts and licenses, including but not limited to band member agreements, artist management agreements, session player agreements, performance agreements, sound engineer agreements, recording and personal services agreements, publishing agreements and licensing agreements.

As a former artist manager, she has implemented many facets of national and regional tours, assembled benefit and charity concerts, communicated with various industry personnel, facilitated radio and internet publicity campaigns, arranged radio, print and internet interviews, and assisted in the development of press kits and websites promoting local talent.

Michelle has also guest lectured on entertainment and intellectual property-related topics at The John Marshall Law School, DePaul University College of Law, Chicago-Kent College of Law and Azusa Pacific University (CA), as well as served as a panelist on various other entertainment-related continuing legal education courses. Michelle is an author and editor of the Litigation and Industry Updates Column of the ABA’s Entertainment & Sports Lawyers Journal and has also had numerous articles published by the Chicago Music Guide.

In addition, Michelle serves as Chair of Swanson Martin & Bell, LLP’s Community Service/Pro Bono Committee and proudly volunteers her time as President of the Associate Board and as a pro bono attorney to Lawyers for the Creative Arts, a non-profit organization that provides free legal services to eligible clients in all areas of the arts.

She also currently serves as Events Chair for the Chicago Chapter of Women in Music, a non-for-profit organization dedicated to fostering equality in the music industry through the support and advancement of women. She recently served as Chair of the Young Lawyers Division for the Illinois Association of Defense Trial Counsel, where she was recognized as the Rising Star recipient and received a Meritorious Service Award and President’s Commendation.

DISCLAIMER: The information contained in these articles constitutes general information and guidance and shall not be construed as legal advice applicable to or provided for any particular person or entity, and shall not be deemed to create an attorney-client relationship between Ms. Wahl and anyone who elects to read and/or rely, to any extent, on the material provided herein.

In that respect, Ms. Wahl hereby expressly and specifically disclaims any such legal relationship, but encourages any person or entity seeking a legal advocate pertaining to the issues addressed and discussed herein to contact her directly for further information. Ms. Wahl may be reached at Swanson, Martin & Bell, LLP (330 N. Wabash, Suite 3300, Chicago, IL 60611 or via telephone at her direct line: (312) 222-8585 or e-mail at: