"Unsigned And Self-Published: Pejorative, Or A Badge Of Honor?"
Written By New York Media And Entertainment Lawyer John J. Tormey III, Esq.
This article is not intended to constitute, and does not constitute, legal advice with respect to your particular situation and fact pattern. Do secure counsel promptly, if you see any legal issue looming on the horizon which may affect your career or your rights. What applies in one context, may not apply to the next one. Make sure that you seek individualized legal advice as to any important matter pertaining to your career or your rights generally.
Whether you take artistic license and use the hyphen - or even if you don't - "mutually-exclusive" is the most important concept in the world of new music publishing and licensing. What do I mean? Please read on.
The digitally-transmitted Internet dictionary "Wiktionary" defines "mutually-exclusive" as follows:
"In logic and probability theory, two propositions (or events) are mutually exclusive or disjoint if they cannot both be true (occur). A clear example is the set of outcomes of a single coin toss, which can result in either heads or tails, but not both."
Artists hate to be categorized. Rightfully so. Yet the truth is that artists, like athletes, manifest themselves in different forms. "Signed". "Professional". "Unsigned". "Amateur". There are many artists who are non-amateurs. There are many artists who are professional in every other sense of the word, but yet unsigned. Sometimes the distinction is just a matter of luck. Sometimes unsigned artists don’t even want to be signed, these days.
As of press time, I have been immersed in the practice of music and entertainment law for about thirty years, and have now entered my fourth decade of practice. Obviously the last twenty or so years constituted a digital revolution that shook and arguably uprooted the entire music industry. I collected a whole lot of longitudinal data, trends, and anecdotes over those past few decades. What I still have trouble understanding, is why so many amateur and otherwise unsigned artists refuse to accept or even acknowledge the concept of "mutually-exclusive" as pertaining to new music placements. Alternatively put, why try to sell or license your music at a premium to a professional entertainment company such as a record label, once you have already made the same material available for free or even pay-download on the Internet? Why expect the buyer to pay for the cow, once the buyer and everybody else can already get the milk for free (or, for but a few pennies)? Shouldn’t that be a rhetorical question?
Specifically, self-publication needs to be, once and for all, acknowledged as mutually-exclusive with respect to the placement of the same material for license or purchase by a professional entertainment company buyer or licensee. If you’re the seller, isn’t it presumptuous at best for you to expect that seller to economically compete with you on the self-same material immediately after you sell it to them? Shouldn’t that be a rhetorical question, too?
Now granted, it is age-old common practice for film or television companies to pay synchronization ("sync") license fees to established artists and bands for music already published and on the radio. After all, in those cases, the studio or network is really paying for the “recognizability” of the tune as applied to what is usually previously-unseen visual content.
Yet in most garden-variety cases involving amateur and otherwise unsigned new artists seeking to place their newest material, their working presumption should be that the maximum value is extracted from the first "sale" of a piece of music rather than from a subsequent “sale”. Companies pay for the "newness" and "freshness" of the product. Conversely, companies pay less, if anything, for that which they perceive as "stale". Companies pay for exclusivity. Companies generally pay less for non-exclusive rights to the same material. Therefore, the artist should make every effort to make the first sale count. A fortiori, the artist should make the first sale count in this age of digital transmission wherein the artist should (unfortunately) presume that everyone will have a copy of the song once and after the first sale is made.
First, look at this dynamic from the perspective of the end-user listener of recorded music. I am happily old-school. I was lucky. My father gave me my first Bob Dylan, Jefferson Airplane, and Led Zeppelin LP’s on vinyl. I bought 45's at Disc-O-Mat on Lexington Avenue in midtown Manhattan. When the kids in grade school behind me spent their coinage on the next generation of 33-RPM and 45-RPM records, they usually paid for the "newness" of the recording. They paid for the novelty. They paid for the fact that the music had yet to be heard by most of their classmates and friends. They paid for the fact that they could be the first on their block. True, uploads, downloads, and digital transmissions make all of this commercial activity happen a lot faster nowadays. Yet things haven't changed all that much in terms of an end-user only wanting to pay a premium for recorded music which they have yet to hear. The same still goes for record labels, or what is left of them - and in some cases, it goes for some music publishers too. To quote the Michael Douglas "Gordon Gekko" character from "Wall Street":
"Come on pal, tell me something I don't know... Surprise me".
Second, look at the rest of the entertainment industry. Consider the film industry as an example. What would you think an "option agreement" is really all about? How about a "first look" deal? A "right of first negotiation"? A "right of first (or, last) refusal"? In one way or another, these are all reasonably well-established mechanisms whereby the buyer or licensee buys, or bargains for, an exclusive window of time within which to make a further purchase decision. In other words, in most of these film industry cases, the buyer or licensee, usually a studio or distributor, is paying for the right to be first – for the right to have and possess an exclusive. Studios and distributors thereby acknowledge the significant economic value in being the first to consider artistic material that the rest of the world hasn’t even yet seen or heard. A studio might cut a significant check for a 14-day "first look" at a new script involving a hot screenwriter or A-List talent. Never mind the product for a moment. The time-window alone has economic value. Therefore, it is reasonable to assume that those working in other branches of the entertainment industry, like music, would perceive economic value in bearing first witness to artistic material.
Third, put yourself in the shoes of the A&R executive at a record label, on the receiving end of a query on "new" music. Let's say that artist Jane Doe retains a music lawyer to seek to submit Jane’s "new" three-song demo to the Acme Record Label. Acme says "yes". Old-school like me, the Acme label receives the demo in mailed CD form. Assume that Acme's A&R executive then reviews the CD's liner-notes and reads the numbered three song names. Then assume that the A&R executive immediately Googles "Jane Doe" and finds that Jane has somehow made the very same three songs available through iTunes, Spotify, Pandora, Jane's own website, and even via sale at Jane's gigs throughout her coast-to-coast tour. It should come as no surprise when Jane's demo CD receives a one-way ticket to the circular file without further comment. If you could hear the A&R executive’s comment, though, it would probably sound like this:
"You expect me to sell this? Really?" (SFX: The SMASH of a CD in its case hitting the inside of a wastebasket).
In the pursuit of a record deal, absent unusual and extraordinary circumstances, artists should presume self-publication and self-distribution to be mutually-exclusive with respect to placement of the same material with a label. Moreover, the solution is easy enough to implement. Most younger and unsigned artists believe that their most recently-recorded material is their best material. Probably 80% to 90% of the time, they are correct. Therefore, these artists can make their older catalogue, or portions thereof, available on their website for free download, for promotional purposes - if they really want to give that older, prior material away. Then, these same artists can “hold back” on their newest material, and only forward that more-recent material to prospective interested buyers and licensees in a carefully-controlled environment and non-public manner.
It seems obvious to many of us that the new material should be kept under wraps until sold, at least for material which has a chance to be sold. So, why do so many unsigned artists rush to post and upload their material to websites, social media, and streaming systems – sometimes on a same-day or real-time basis, even? Because they can. Because they are in a rush. Because they are impulsive. Because they mistakenly equate Facebook "likes" with paying customers. Because the desire to self-promote and be a star overtakes the desire to make rent or car payments, at least temporarily. Because often on some subconscious or subliminal level, these artists have already given up on monetization, on the music industry, and on the commercial potential of their own material. I suppose that all of this represents the artist’s own choice to make. Perhaps there are many cases wherein the music has no likely commercial value and so might as well be uploaded for free for promotional purposes.
However, the mistake is made when an artist tries to have it both ways. The mistake is made when the artist hedges. The mistake is made when the artist tries to straddle the fence. The mistake is made when the artist forgets the definition of "mutually-exclusive". The mistake is made when the artist self-publishes, and then and thereafter seeks a professional publisher for that which he or she has already self-published. The mistake is made when the artist puts the cow up for auction well after the milk's expiration date has already passed. What are the consequences of that mistake? Wasted time. Wasted money. Agita. And possibly, the artist’s own credibility in the eyes of the record labels and other professional entertainment companies approached with previously self-published material.
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My music and entertainment law practice includes the placement of artistic material including music "demo-shopping" - and the drafting, editing, negotiation, and closure of all contractual matters relating to film, music, television, publishing, Internet, and all other media and art forms. If you have questions about legal issues which affect your career, and require representation, please contact me: