Music Law with Aurelia Butler-Ball

The music industry involves substantially more than just the creative process. A new entertainment economy powered by technology is emerging, and it’s becoming increasingly complicated. If you want to make a reasonable living as a recording artist, then a music lawyer like Aurelia Butler-Ball will help you understand the complexities of licensing, publishing and negotiation.

Employing legal assistance is also the quickest and most effective way to protect artists from illegal downloading. “It’s difficult, because copyright legislation was written at a time before this technology was around,” Aurelia tells me. “It’s down to working with service providers and platforms to ensure they can respect my clients’ copyright as much as possible.” One of the biggest obstructions in stopping illegal downloading are the search engines themselves, many of whom continue to include illegal downloading sites in their pages.

Governments are under increasing pressure from record companies to actively pursue platforms which infringe copyrights. “If we see there is illegal content on a platform we can send a ‘cease and desist’ notice, advising them to take down the offending materials.” This is difficult with platforms like Youtube, who will occasionally respond by removing all of an artist’s media from their sites, rather than discriminating between licensed and unlicensed material. So chasing unofficial media is a balancing act, as obviously a client wants their music out there. “It’s not a nice situation for copyright owners, but everyone’s trying to do the best they can.”

Music theft is affecting the industry’s major players the most, for now… As with all eco-systems though, when resources start disappearing less money filters down. “The labels don’t have as much money, as they once did, to place with emerging artists.” This means the industry is less inclined to take a gamble on new music, threatening a creative stagnation. The European Union is attempting to revise its legislation in reaction to this situation. The initial intent is to simplify the process, but with varying practices amongst member states, making everything cohesive is a big task.

I first met Aurelia at The Great Escape last month. Not simply a festival, but a music conference preoccupied with rapidly changing revenue streams and helping new artists get a farer deal throughout their careers. A media specialist with Thomas Eggar LLP, Aurelia herself looks after the legal concerns of bands, songwriters, management companies, record labels and publishing companies in the Brighton & Hove area.

She has a range of clients at various stages in their careers, negotiating commercial arrangements, as well as advising and finding a deal which suits them. She tells me the most important task is to find out where her clients are artistically, so she can introduce them to like-minded people, such as managers, publishers and sponsors.

The relationships between an artist and their management can be sensitive. Managers will spend a large amount of time and perhaps money on a developing artist, who may never get off the ground. Contracts have to be drafted quite broadly, stipulating that managers have to act in the best interests of their client. “What’s reasonable is up for debate. Which is why that relationship has to be one of mutual respect, because if that breaks down there can be all sorts of problems.”

One thing everyone would welcome in the music industry is the simplifying of how royalties are calculated by streaming platforms. The whole process is in desperate need of simplification and transparency. Figures from the British Phonographic Industry – the UK’s record labels trade association – reveal the total retail value of albums, singles and audio streams in the UK broke £1.03bn in 2014. This was a fall of 1.6% from the previous year. Figures also show a 9% decline in digital album sales, to 29.7m in 2014, physical album sales similarly falling from 6.9% to 57.2m in 2014.

Whilst it’s encouraging CD sales are declining at a slower rate, and vinyl sales even increasing 65.1% to 1.29m units, these statistics shed a harsh light on the state of the record industry. “We’re seeing a drop in physical sales in the major territories. So we’re going to be relying more on emerging markets, like South America, Africa, India and Russia. But unfortunately many of those places have a huge problem with copyright infringement.” A picture has been painted recently of an epic struggle between physical and digital sales, but a new front is emerging.

Streaming accounted for 12.6% of total music consumption last year, that’s double the figure for 2013, all facilitated by platforms which didn’t exist a decade ago. It is an increasingly crowded market. Apple is now entering their market with a new steaming service, following the stagnation of the iTunes platform. But none of the steaming services seem to be making much money. Supported by big investment, no successful way of monetising has been found. Figuring out how much money labels, publishers and musicians (songwriters included) are making from streaming is a key industry challenge. “It’s an ever changing world for the music industry. It will be interesting to see how the money filters down to my sort of client.” The music industry is seeing increasing numbers of new artists, so it’s imperative these acts secure reasonable deals for themselves. One positive is that streaming drives consumers away from illegal platforms, eventually pushing revenue to the artists.

Aurelia also highlights to her clients the importance of establishing a publishing split agreement prior to the song writing stage. A major issue here arises from sampling, something artists are increasingly utilising. Not just the wholesale lifting of other artists’ work either, it can now be the feeling of a song which infringes copyright. Increasingly only the majors have the money and contacts to clear samples. “It does drive home how important it is to obtain clearance for use of a sample. Sometimes it comes down to advising my clients that it’s not worth it, because the fee the rights owner is asking for is just too much or the rights owner is impossible to find.”

It can be a big investment for something that might not be a hit, especially when the rights holder settles out of court, simply picking a price which you have to pay. This can be anything from hundreds to hundreds of thousands of pounds. One example of this is The Verve’s ‘Bitter Sweet Symphony’, the band ended up paying 100% of the song’s profits to the Rolling Stones. Good business for a tune, which in turn sold a lot of albums. The further you dig and the more obscure it is, the chances are it will be cheaper, but finding the owner becomes progressively more difficult. “You find yourself sitting down with clients asking: ‘Are there REALLY any samples in this?’ It can be a world of issues.”

From resolving personnel disputes to liaising with record companies and helping with publishing agreements, Aurelia’s main mission is to find amicable arrangements, and keep her clients out of court. Working with a range of hugely inspiring clients, she fights to have the value of their intellectual property recognised. “We can be quite daunted by the new challenges that the latest technology has brought. But people are consuming music more than at any other time. Working in the music industry is fantastically exciting, now more than ever.”

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