If you decide to go rock-climbing, there are certain risks involved (even if you copped out for the safer indoor alternative). You could misplace your footing, causing you to slip and fall. You mightn’t grab the nearest handhold in time and you hit the bottom, having to start all over again.
This is why we use safety cables and hire an instructor, in order to prevent these pitfalls from occurring – quite literally.
Now imagine viewing the creative industries in a similar light. In order to avoid any accidents, falls, re-starts, or damages, one can follow the same principle.
Obtain a safety blanket, or an instructor to guide you along the way.
Cue the Entertainment Lawyer, the music industry’s knight in shining armour.
Dan Chisholm, an Entertainment Lawyer from Papprills Solicitors and Lawyers, sat down with me to discuss his role within the creative industries, the common conceptions of having a lawyer, the necessities of having a lawyer, and the traps a creative will fall into again and again….
How did you come to practice Entertainments Law?
Well I’ve always played the drums, but then I studied law at university… I was playing while I was studying, even when I practiced law – I was still playing. The band I was in at the time, BONJAH, was like ‘We are gonna’ head over to Melbourne, do you want to give that a crack?’ and I said ‘Yeah okay, why not? Cool,’ as simple as that.
Instead of practicing law, I slept on floors, toured around in the van, lasted a good four and a half years doing it tough as what you’d call a ‘hardcore muso.’
During this time, when people find out you are also a lawyer, they find it an interesting combination. They start asking you questions about a certain contract and I was thinking, ‘this is kind of cool, why not get into this area of entertainment”, because it was pretty interesting. I really enjoyed looking through contracts, so I decided to get back into law.
It’s kind of marrying creative industries with an analytical mind – left side of the brain with your right.
Yeah, the music industry and the legal industry involve two separate sides of the brain. One’s incredibly creative and free and in the moment, it’s like you switch off and let your heart do the rest of the work. The other side is all very structured, and intellectual, and meticulous, and you have to concentrate on every little detail.
It’s not surprising when muso’s or artists come up and ask for help, in they don’t understand a contract, because its something that doesn’t come naturally to them.
So is it your role to advise?
Someone might come to me and say ‘This big corporation want me to sign this contract and want me to sign it tomorrow. It’s 20 pages long, I don’t know what it means, they tell me it’s all very stock standard, what does it mean and is it okay to sign?’ That will be sent through to me, I’ll look through it and decipher what it does mean in plain english without the technical jargon. If amendments need to be made in certain areas, you make these amendments on behalf of the client, take these back to the company and negotiate any terms.
Probably about 90% of what I do revolves around a contract – advising, negotiating or drafting. However I act for artists, managers, labels, and publishers.
A party might say this person we are signed with, might be an individual or company, isn’t holding up to their area of the bargain, there’s an issue here – what do we do? Hopefully all of that is resolved out of court, no one wants to go to court.
I’m there to say ‘Look, there is this issue, let’s fix it.’
Is it vital for a creative to go through this process?
Everyone needs a lawyer.
Anyone that’s doing business needs a lawyer.
Contracts have those agreements set in concrete, oral agreements are still valid but it’s a hell of a lot harder to figure out what was discussed if it isn’t written down… contracts make the world go round.
A common conception is that lawyers are expensive, for a struggling creative – could this be considered a luxury?
No, not at all. The reality is, lawyers are expensive.
However, it’s not much if you really consider what you are getting for your money, it’s not much at all really. If you think of all the things that could go wrong down the line for not having a lawyer, it makes sense.
Have you noticed it’s been harder to regulate contracts with online deals and arrangements?
There are a lot of inquiries regarding sampling, and how to get it away with it legally. Look at this recent case with Pharell Williams and Robin Thicke, with ‘Blurred Lines’ infringing on Marvin Gaye copyright. There are some real misconceptions about how you can do this legally.
It’s often thought, if you sample a small portion of the song – you’ll be okay. Yet, you have to look at whether you are gaining the essence of the previous song.
Well is it hard to define ‘essence’?
Well think of the Jaws theme, its so simple and short, yet it’s SO distinctive. If you sampled that in your own track, it’s a classic example of taking the essence of a theme – even if it’s a very small portion of it.
What’s the most common area of breach you handle? Copyright? IP? Contract?
Usually it’s a breach of copyright and clearances, so obtaining the permission to use somebody else’s work. It could be argued that all of the work really does revolve around copyright in a way.
There is always dispute as well.
There was this great kiwi artist who is based over here in Melbourne, and she was on the internet looking for clothes. She was on a particular website, it was really quite a large clothing manufacturer that distributed all around the world. She clicked on one particular dress and it was one of her pieces of art replicated on the dress. She was like ‘What the hell? I’d never have given my permission,’ she clicked on various items and it had been replicated again and again – this is an example of copyright infringement.
Is there a common trap that creatives fall into?
There’s two things.
1) Not having a contract with someone
2) Or signing a contract when you don’t know what it means
Which happens all the time – and it’s unfortunate.
The problem is, a lot of the time when individuals are approached, they are told, ‘Hey mate, got to get something down in writing, here’s one of our very standard contracts, I think you’ll find it’s incredibly fair, all our clients sign this, it’s never an issue so don’t worry about it, just chuck our signature on this tonight and we’ll start making you some money.’
It’s just a shame when people choose to go ‘Okay, cool’ without first understanding what it means.
When it comes to what’s lawful versus what’s ethical, Is it hard to keep reason free of emotion?
Recently, there was a really talented artist that had signed with a record label that’s not really a record label, more a small group of people with a lot of money who didn’t really know what they were doing. However they had hired a solicitor to draft this contract, and the contract was designed so she wasn’t able to get out of it very easily.
Unfortunately, she’s locked into it for another three to four years, and she’s had a couple of years with them already. She’s really disappointed with the label but unfortunately there is nothing you can do because everything is locked in.
I feel sorry for her, but at the same time, if she’d looked for legal advice she wouldn’t be in this situation.
Have you learned from your own mistakes?
That’s exactly how I’m able to relate to clients.
When we first came over here, there were a couple of agreements that we signed that weren’t great ones. But we were hungry (literally, starving). We just wanted to sign with people we thought were good but they didn’t turn out to be that great.
We were hard muso’s living on peaches and wheatbix, but we signed this contract knowing it wasn’t a great deal, yet we thought it might be our chance to get a break and it didn’t work out that way.
Lastly, do you enjoy practicing law as much as being a musician?
Yeah it’s so crazy, their so different, but everyone needs a balance in life. If you are all work and no balance, I think you’d become pretty drained.
How many artists do you see sleeping on the couch? I think to get somewhere you need to treat it like a business.
Is it a luxury to get a lawyer? It’s a necessity, you need to think with a big business mind.
Dan Chisholm is currently based in Christchurch, New Zealand. Within Papprills Solicitors and Laywers, Dan’s role is Entertainment Lawyer.
Travelling between Australia and New Zealand, Papprills are looking to expand their offices in Melbourne and Sydney.
So keep a look out for Dan on the climbing wall, I’m sure he’ll try to catch you if you fall.
Visit the Papprills website here.