Martin F. Frascogna specializes in the intersection between music and international law. His niche is working with internationally-based artists, labels and publishers, as well as a substantial roster of “indie” musicians.
He is the author of the self-published series: “How to Market and Promote Music Internationally,” which includes the titles “How to Market & Promote Music in SWEDEN,” “How to Market & Promote Music in ITALY” and “How to Market & Promote Music in CANADA”. He is also the co-author of the book “Entertainment Law For the General Practitioner,” released by the American Bar Association.
He is a speaker on “Globalization of the Music Industry” for the CLE Seminar on Entertainment Law and is an assistant professor of entertainment law at Mississippi School of Law. He was acknowledged by DePaul University, recently ranked as the most diverse school in the US, as one of their top 14 alumni under the age of 40.
I sat down with Martin and discussed todays popular topics including the music streaming service Spotify, copyright infringement, and the battle over artist song rights. Click here for full interview.
How did you get started as an entertainment lawyer?
Fortunately (or Unfortunately) I’ve worked in the entertainment industry my entire life. Couple that with the fact I’m the son of an entertainment attorney and in a family deeply with the music industry and my path was somewhat inevitable.
My leap into entertainment law was solidified while in graduate school at DePaul University where I studied international marketing. The university had me work with Chicago area bands that couldn’t break outside of the midwestern market. I begin working with groups/labels to carve out international fan bases. In reverse, this also led to me working with international artists looking to penetrate the North American music scene. It was amazing to me that no company (or individual) focused on bridging the “international” gap. It also became apparent that indie musicians and international acts couldn’t find legal representation (which they desperately needed) because entertainment attorneys’ only provided information/representation after an artist paid them asinine retainers. To me this is a prime example of the “old model” and not realistic in today’s market. Then and there I made the decision to invest in law school. The best way for me to contribute to the “new industry” was to provide affordable representation to my two musical passions: indie musicians and international clients. To me, the industry has changed so everyone must adapt, recalibrate, search for new markets and find professional models that make sense. The old model worked for entertainment attorneys and not musicians. Now, altering the professional landscape is necessary.
Who do you currently represent?
Much like doctors, who are prohibited in discussing patients and patient information, as governed by HIPAA regulations – the Rules of Professional Responsibility and Ethics ban lawyers/firms from discussing clients. Clients have to grant lawyers permission to publically showcase them as a client (i.e. – the attorney/client privilege). It cracks me up when entertainment attorneys promote their representation of a particular artist because (a) they probably don’t, or (b) even if they do, they probably don’t have authorization to discuss the client. Tip – if an attorney is telling you about who they represent, RUN. One rule of thumb is to choose an attorney based upon (a) the firm’s reputation, (b) their longevity in the “entertainment business”, or (c) referrals.
Broadly speaking, as for clients our firm represents, I’ve been fortunate enough to work with Grammy Winners, Billboard performers, Rock and Roll Hall of Fame inductees, Grammy Life Time Achievement Winners, Eurovision performers, award winning recording studios and platinum record labels, along with Grammy winning songwriters and producers. I’m not delusional – I’ve been lucky! However, I have to say I’m more proud to represent a hefty roster of high profile indie groups who were rejected by other attorneys, along with international bands/labels in 23 countries on 6 continents.
Describe your day to day.
Pretty much everyday is a bullfight. I’m either cleaning up a mess or attempting to prevent a mess. The best analogy I can’t make as to my day to day operations is that I function as air traffic control. Bands have lots of moving parts and everyone is promising something. My job is to make sure the relevant planes are in the air and flying where in the direction they promise to be flying. This may sound straightforward but it’s anything but. At the end of the day my job is protect my client, not the other planes (i.e. – labels, managers, agents, publicist, etc.) coming and going in their career.
How does the ever changing music business make your job more challenging?
It actually makes my job more exciting. Now, there’s no limit on creative ideas because if you approach career progression, album releases, media, and/or label negotiations like the model playbook from 10 years ago (i.e. – the dinosaur model), you’ve already lost. I’ve found that our firm can generate more creative release strategies (especially given our global approach) as opposed to labels because we’re not locked into a standard working model.
You recently Tweeted “I couldn’t think of anything more awful then running a cloud service. Isn’t there 5000 of them already.” Please explain…
True. Even reading this statement, it still sounds awful! I love all of these services and thankful for the creators, but it seems everyday some new streaming/download/web radio/cloud service provider pops up in the news. Running a subscription or ad based services, especially with new laws looming and murky interpretations, I’m just happy to stay away from that poker game. It’s way too competitive and relies too heavily upon a drowning economy.
The internet is cluttered with senseless noise which makes it frustrating finding new talent. Where do you typically find new talent?
You have to rely upon successful filters. Kings of A&R is a favorite of mine because it always showcases a combination of successful musicians with an overall good package. Personally, I rely heavily upon the Billboard international charts and obscure music blogs. A majority of people care less about the global trends, international acts, and which small band in small town U.S. has a unique sound. I do.
Fortunately, rarely do we have to seek out new talent. We run a boutique firm operation. We would rather work with clients we deeply believe in, people we’re able to grow with, and acts we see global possibilities with. By no means are we a cattle call operation. Because legal representation is one of the only areas immune to the DIY mentality, we have to become more selective whom we represent. At the end of the day, we only have so much time so if we can’t devote energy to a client, we won’t waste their time.
A new artist records songs and begins performing shows. When is it time for entertainment lawyer?
Way before both. I can think of 9 major legal components (at a minimum) spawning from those 2 events and that’s before this fictitious artist officially releases the product to the marketplace.
-Does the band have a partnership agreement?
-Have they registered for a trademark?
-Have all the song writing agreements been issued to the appropriate parties?
-Who owns publishing?
-Has a publishing company been legally established?
-Was there a short form recording agreement with the recording studio? –
-Who funded the album?
-Who booked the performance, and who issued the contract?
-Did the band (or performance venue) hire a promoter? If so, does the band control their right of publicity, trademark, and copyright when promoting the show with concert posters?
These are all major issues. Not glamorous in the grand scheme of things (creatively speaking), but these are the issues that separate successful bands from the hobby bands. As groups grow, all of these issues can eventually cost hundred of thousands (if not millions) when not properly set up. This is the garbage I have to deal with and I hate to see it. People think “this can’t happen to me” or “our band isn’t big enough yet” and that’s just wrong. Legal representation is crucial to have on the front end. Bands are businesses and should be treated like businesses. You would never start a business, sell product, generate an income and then say “hey, now let’s figure everything out in terms of who created what and who’s getting paid.” I can assure you (speaking from experience), this approach always ends badly.
I have a different take with legal representation today. The legal model of old (and unfortunately the model still used by 99.9% of attorneys) is to represent artists who are set for major label releases. Attorneys represent clients when (a) they pay an inflated retainer, or (b) agree to pay unrealistic hourly rates. Work has always been straightforward: analyze contracts, draft contracts, negotiate, and assure business affairs are in order. This model worked fine when majors ruled the roost. Now, the entire industry is different because indies rule, international competition is stiff, and there’s a serious financial crisis in the mix.
My mindset, which is pretty much frowned upon in the legal community, strays away from the traditional model (for better or for worse). Artist need legal representation but often can’t afford to pay the exaggerated rates. Instead of throwing our hands up and claiming the legal markets dead, we must adapt. The only thing dead is outrageous fees and dated thinking. I try to make to it legal representation affordable, often times working on a sliding scale, or in unique cases, letting artist dictate what their budget is (or should be). Not me. Why should I? Hourly rates are irrelevant because indie level artist can’t afford to pay them. Nor should they. Artists need to have access to the basic foundations, and in the past these foundations were shut down because it cost way too much. Now it doesn’t have to.
In the past, attorneys would bill for the work they performed, but artists never really understood what work was being performed. As an artist, if I received a bill for $7500 and didn’t know what it was for, I would be pissed off. Because of this I try to be as specific as possible with my clients – outlining what work will be performed in a given week, month, month(s) and years. This allows groups to set budgets, plan, have a business front man, legal protection, and a hub to manage management/agent/label proposals – possibly before the popularity hits.
Above all, I must assure my clients are taken care of in all business and legal situations but in today’s industry, artist need so much more. They may need legal to connect them with the appropriate management team, agent, label, PR, and distribution outlets as opposed to them constantly wasting time tracking down these parties themselves. Most of the time artists tend to have the door slammed in the face or e-mails hit the trash when approaching these parties themselves. Legal adds a level of legitimacy and separates artist from the pack, not to mention it allows artists the ability to tap into our resource pool, contacts, and relationships with management/agents/labels.
Essentially, we have to be more than attorneys; we have to be the filter and/or the connector to help our clients reach that next level income stream.
Do you shop unsigned artists to music labels?
Often. However the difference in today’s market is that sometimes artists don’t want to sign with labels. They rely on us to help them generate traditional and non-traditional release strategies so they can bypass the labels altogether. Although this is slowly becoming the norm, I wouldn’t recommend it for everyone. Some bands are more business savvy, marketing savvy or financially on better footing compared to other acts. It’s about knowing your available options and then taking the correct road for your band.
Music streaming site Spotify has recently received tons of press. Some critics state Spotify doesn’t pay artists enough. Both Metal Blade and Century Media Records have pulled their artists from Spotify. Your thoughts?
It is what it is. Believe me, most of these sites are fighting tooth and nail to stay alive and their business models are based upon fair procedures. As an artist or label, you’re never going to rack in money with streaming sites but you do need to make the business decision whether the visibility outweighs the reward. If it’s nothing more than an additional income stream (as minimal as that may be) you need to know how to maximize the efforts and leverage streaming with your other creative assests.
The record industry is bracing for a battle over artists’ song rights which is discussed in The New York Times http://www.nytimes.com/2011/08/16/arts/music/springsteen-and-others-soon-eligible-to-recover-song-rights.html
How do you see this landmark event unfolding?
We are about to experience absolute Armageddon. People assume labels are screwed but I don’t share this view. There is a slippery slope for both sides. Alleged copyright holders will have to weigh the option of reclaiming or fighting for possession with costly litigation. At the end of the day, holders will have to weigh the expected earnings of the copyright against the cost to fight in court. Court battles will be inevitable because the labels won’t hand over these rights, nor do I blame them.
In the past several years, music labels have sued over copyright infringement. Now, Hollywood has become a victim. There is a civil war between Hollywood and the internet. In your opinion, does the government need to get involved protecting copyrights?
The civil war is nothing new, but the issues will only worsen as the motion picture and literary industry continue to feel the same effect as the music industry. Personally I think the giants have handled things poorly and I don’t necessarily agree IP protection is the primary culprit. Everyone is waiting for someone else to figure out the problem. I’ll keep my solution to these issues silent, that is unless the RIAA or majors want to be hire me for assistance! There is a solution; we’re just going about resolving it the wrong way. Fresher minds need to be injected into the resolution process.
Honestly I think further government assistance only complicates the matter because what’s in place is sufficient. The civil war is a result of conflicting mindsets, self-severing legal interpretations, and resiliency to seek new beneficial avenues as opposed to keeping an outdated model. If people don’t bend, it will break.
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