Music and the Law

Music and the Law: The Role of a Music Attorney

Brian Witkin, founder and CEO of Pacific Records at the San Diego Film Awards.

Once an attorney passes the state bar and takes an oath, he or she is authorized to practice law in that jurisdiction (state). A Juris Doctor degree, or J.D., is a general degree—for example, personal injury, business, and immigration lawyers all practice under the same license. But general practitioners or attorneys that practice in a variety of unrelated areas, are uncommon. Most attorneys focus on specific practice areas because the law is detailed, specific, and complex; being a jack of all trades is nearly impossible. While a few legal fields require additional specific certification (e.g., patent law and maritime law), practice areas are generally based on advanced study and experience.

The term entertainment attorney itself is broad, including attorneys practicing in areas ranging from sports, film, and television to music, theatre, and gaming, to name a few. Even these sub-categories require in-depth industry-specific knowledge, and typically attorneys choose one or a subset of these categories in which to concentrate. For example, my primary areas of practice are music law, film law with an emphasis on the meeting point between film and music, music supervision, and song licensing. The focus of the remainder of this article will be on my primary focus area: music.

It’s impossible to understand the role of an attorney without first understanding some of the other players in the music business. A common misconception is that an attorney’s role is to manage an artist. While sometimes attorneys happen to be managers, the roles of an attorney and a manager are very different.

There are two types of managers: a personal manager (what most people think of when band manager comes to mind) and a business manager. A business manager handles the finances, including everything from accounting and auditing to managing payouts. A personal manager takes the larger role of CEO and captain of the artist or band—that is, assisting in making big decisions, advocating for the band, managing websites and social media pages, scheduling, and guiding creative direction. While both types of managers typically work for a percentage of the overall profit, they may also work on a flat-fee basis. Emerging artists may have a manager who serves both roles. No license is required to be a manager, and managers are not expected to procure employment (i.e., book gigs), which falls under the duties of a talent agent.

The talent agent (sometimes referred to as booking agent, or just agent) is in charge of procuring employment for artists (booking shows, tours, appearances, etc.). In California, the Labor Commissioner regulates talent agents and requires licensure and a bond to book artists. Agents typically charge a percentage of their bookings.

The specific role a music attorney depends on the needs of their clients, but in a broad sense it is to help them navigate the commercial and legal side of the music business so they can make informed decisions in their best interests. For example, I have helped artists negotiate record deals, assisted in copyrighting complex works (songs) with the U.S. Copyright Office, resolved matters with their performance rights organization (PRO), and created band member agreements. A music attorney can create or review contracts between an artist and a manager, producer, or record label with either party as client. Attorneys may also advise clients about the law and how it affects their business and bottom line.

Witkin in the studio.

Legal practice includes transactional work (including most of what I have described so far), and litigation (lawsuits, court appearances).  An entertainment attorney can represent an artist in either of these settings. Entertainment attorneys experience a wide range of business arrangements and develop networking, relationships, and comprehensive understanding of the mechanics of the entertainment industry that can be invaluable to their clients. Attorneys can often help artists get in the door with introductions and access to the networks of the attorney. Some attorneys are strictly business-minded, while others are musicians themselves and have a desire to be around the action. Attorneys typically charge by the hour, and hourly rates can vary significantly based on experience and location.

In summary, the music industry is complex, with a number of stakeholders who come together with varying degrees of expertise and knowledge. A music attorney is an important asset for both emerging and established artists in an industry that is becoming digitally complex and increasingly transformed by technology and social media.

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About Brian Witkin
Brian Witkin runs a boutique entertainment law firm in San Diego. He is also a musician, music producer, and CEO of Pacific Records. Brian has spent nearly two decades in the record business and continues to be musically active as an artist, songwriter, and record producer. He is also a Grammy® Voting Member of the Recording Academy. Brian’s father, Joe Witkin, was the original keyboard player of Sha Na Na, who performed at the iconic Woodstock Festival in 1969.

Note: This article is for general informational purposes only and does not establish an attorney-client relationship. Every situation is different, and the general information contained in this article may not apply to your specific situation. The author and publisher assume no responsibility for actions taken based upon the contents of this article. Seek the advice of counsel for your specific situation.

©Law Offices of Brian A. Witkin 2021.