Develop Your Art into a Business

May 20, 2014

Musicians are among the most gifted, focused, and hardworking individuals you will ever encounter, yet many of them find themselves struggling professionally from time to time. There are a number of unfortunate reasons for this, including a declining number of professional opportunities, increased competition, and the systematic under-compensation of musicians across the board, but one stands out in particular: the “art” of music and the “business” of music are more disparate today than they have ever been. Many musicians focus on artistic development to the exclusion of business development, rather than committing resources to both sides of their career.

When I say that the “art” of music and the “business” of music have diverged, what I mean is that it is now appreciably more difficult to make a living in music by working for someone else than it has been in the past, making it necessary for today’s musicians to be entrepreneurial thinkers rather than solely artists. In recent years, with orchestras folding, tenure track professorships being replaced by adjunct positions, and the widespread use of synthesized theater music, opportunities to be employed by someone else in the music field have become limited enough that simply being the best player or interviewee is no longer the most important determinant of whether or not you succeed at making a living. Today’s musicians have to be more prepared than ever before to work for themselves, which requires, in addition to high levels of artistic ability, an organized business approach.

Assume that your branding is top notch and your artistic preparation unrivaled. Maybe your band is also a hit; you’re writing some great tunes and landing a lot of gigs. Now what? The two most practical business considerations to bear in mind are: organizing your business in a way that reduces your exposure to liability and protecting your intellectual property.  

To reduce your exposure to personal liability, strongly consider forming a business entity. While this might be a good idea for a variety of self-employed musicians, it is especially the case for bands and chamber groups. Setting up a Limited Liability Company (LLC) or Limited Liability Partnership (LLP) can keep you from being personally on the hook if a lawsuit is pursued against you or your group. Whether a patron is injured by tripping over a microphone stand at one of your gigs, or a venue seeks payment from you after getting slapped with a $40,000 bill by a performing rights organization for allowing you to cover popular songs without a license (yes, this happens!), exposure to personal liability can be reduced by setting up a business organization. 

Additionally, formally organizing your music business provides you with an entity through which you can contract with venues, management, record labels, and even band members. Who owns your band’s equipment? If you’ve set up a business organization, the band does! While each member of an ensemble probably owns their instruments individually, it might make sense for the business to own assets like recording equipment, merchandise, and the like. With lineup turnover becoming commonplace, you don’t want to feel pressured to keep that subpar guitarist in the rock band just because he owns all the amps, nor should that struggling tuba player in your brass quintet be unassailable because he owns all your sheet music. Having a business organization can mitigate the specter of personal liability, and provides for group ownership of assets, allowing you to put your focus back on the music and making a living.

Speaking of the music, who owns the rights to it? If you have organized your band as an LLC or other business entity, perhaps the rights to your tunes should be held by the band itself rather than by any one member; you probably don’t want a departing band member to take the rights to your biggest hit with him. Group ownership of intellectual property can help ensure that the band as a whole enjoys the benefits of copyright ownership, which include the exclusive rights to duplicate, arrange, broadcast, or perform the protected work for profit. Additionally, once you take the important step of registering your work with the US Copyright Office, you can take comfort in the fact that your rights will be enforced by the court system, if necessary, to protect your intellectual property.

Like it or not, your music career is a business. Make sure yours is sitting on a strong, organized foundation that limits your liability and protects your intellectual property. Once your business plan is in motion, there’s no telling what heights you’ll reach as an artist and entrepreneur.

—Frank Gulino (@GulinoFrank) is a composer, trombonist, and business attorney practicing in the Entertainment and Music Industry Law group at Berenzweig Leonard, LLP, in Tyson’s Corner, Virginia. He holds degrees from The Peabody Conservatory of Music and George Mason University School of Law and is an artist/clinician for the Edwards Instrument Company. He performs exclusively on Edwards trombones.

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