Jamie Watt: Music business a fertile area for disputes

Scotland has a rich musical history, through performers such as Alex Harvey, bands such as Simple Minds and the Rezillos, and with labels such as Soma, NMBRS and Zoom, to mention but a few. The value of music to Scotland’s economy is huge, music tourism accounting for close to half a billion pounds to the Scottish economy, and average per head spending on music in Scotland significantly exceeding the UK average.

Jamie Watt is a partner at Harper Macleod, where he leads the IP&T practice. He works extensively with musicians and remains an active DJ.

As someone who previously worked for seven years within a record label and artist management business, and was involved in promoting a number of nationally-recognised club brands, I know all too well that music is also a fertile area for disputes. That’s why those starting out in the industry are well advised to take note of a few simple points, likely to make their lives a lot easier.

The recent case involving Eminem and his original pre-Interscope first album is illustrative. Central to this case was the allegation that rights had been assigned to a company, but in fact no such company did exist. Also important was the purported onward transfer of these rights to Interscope, but there was a failure to reference this first album properly in the contract. Much time was spent arguing over this, and the result was maybe not what everyone involved desired. The message it gives out is get your contracts right, say what you want to say, make it clear, and don’t forget to include the key details.

Another case illustrative of some of the issues artists can face is the well reported Blurred Lines case, where the family of Marvin Gaye sued Pharrell and Robin Thicke over their alleged copying of a Marvin Gaye track. Many commentators have said (not without merit) that this case was possibly wrongly decided, moving the line between what is actionable copying and allowable inspiration too far in favour of rights holders. However, as a decision, it still stands.

The family of Marvin Gaye sued Pharrell Williams and Robin Thicke over their alleged copying of a track of Gaye's. Picture: Lisa Ferguson

Perhaps important was the fact that it was a jury trial. Robin Thicke, prior to proceedings, had said publicly “Pharrell and I were in the studio and I told him that one of my favourite songs of all time was Marvin Gaye’s Got to Give It Up. I was like, damn, we should make something like that, something with that groove”. Faced with a comment like that, it’s not hard to see how the decision went the way that it did, irrespective of the technical legal merits of the case. So, what should we take from this? Be careful what you say, particularly when it involves referencing major artists.

The timelines of many bands are littered with line-up changes. One only needs glance at rock family trees. Often acrimonious, changes to band line-ups give rise to certain key legal problems. A band is like any other business. It does things, earns money, creates (intellectual) property, and incurs liabilities and risks. Without any agreement between members, a band is generally an unlimited partnership, and as such the provisions of the Partnership Act 1890 and the slew of case law arising from that will apply. Age-old law being applied to modern situations is never a good thing – and wholly avoidable if band members sit down and agree in writing, in advance and before there’s any money on the table, how the band is going to work.

Becoming members of the Musicians Union is a great idea. The MU offers a wealth of assistance and style documents to assist bands in this respect.

Lastly, what about getting paid? A lot of money is spent on music, digitally, in stores, by attending venues, by advertisers, and by many other means. Collecting societies carry out a hugely important function for musicians, and registration with the PRS/MCPS and the PPL is fundamental.

Also, gone are the days when you needed to sign to a major, and give away your rights on a worldwide basis to make it. The person that’s right for you in Japan may be a completely different person from the US. The sensible musician today keeps their rights to themselves and through a combination of licencing, distribution, format splitting, performing and publishing, hand-in-hand with a diverse team, reaches the true extent of their audience.

Jamie Watt is a partner at Harper Macleod, where he leads the IP&T practice. He works extensively with musicians and remains an active DJ