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Interviewed by Michael Laskow
I'm sure you've heard the expression, "He wrote the book." Well,
this month's interviewee did write the book. Don Passman has penned
what most people in the music business consider to be the best practical
guide to the music industry ever written.
It's not uncommon
for industry insiders to refer to All You Need To Know About The Music
Business (Simon & Schuster--16th printing) as the "bible." I believe
them because I've seen it on more music industry executives' bookshelves
than Gideon's Bible in a chain of Motel 6's, and for good reason--it
covers every conceivable question one might have about the music business
in Passman's straight-forward, easy to understand, and affable style.
You might expect
a man who is a Cum Laude graduate of Harvard Law School, and a partner
in a powerful, Beverly Hills law firm (Gang, Tyre, Ramer & Brown) to
be a ruthless shark. Wrong! You've been watching too much T.V. You might
expect a man who has done the two largest artist deals in the history
of the music business to be a boorish egomaniac. Wrong again!
While it's
true that Passman did negotiate the reported $70,000,000 deal for Janet
Jackson, and recently topped that by nabbing a reported $80,000,000
for R.E.M. in their deal with Warner Brothers, I found him to be much
more humble and gracious than people with far less to brag about.
In between
writing books and doing mega dollar deals, Don also finds the time to
teach a course at University of Southern California's Law School's advanced
Professional Program and give frequent lectures.
Can you give our readers some insight into the scope of what you
do by naming some clients?
R.E.M., Janet Jackson, Bryan Adams, Tina Turner, Quincy Jones, Green
Day, Bonnie Raitt. (Short list--he's being humble.--Ed.)
Yeah, but have you ever worked with anybody famous Don?!!
(Polite laugh)
Is there any one thing in your music law career that comes to mind
as being a proud moment for you?
Certainly doing Janet Jackson's and R.E.M.'s deals were proud moments,
just because when you're in that position, you can rewrite the rules
of how the game gets played and set new standards for everybody. The
other thing I did that was interesting was back when I had only been
practicing two years. My senior partner, Martin Gang represented Elizabeth
Taylor, and he sent me to Switzerland to do her divorce from Richard
Burton. That's totally unrelated to music, but it was certainly a high
point in my life.
Sure Don, but do you know Larry Fortensky? Which leads me to my next
question... I know you're very selective when it comes to choosing clients.
How do you choose them?
We're different from most of the other law firms because we're little.
The way that we stay small is we don't take much business. I pick my
clients on a bunch of different criteria. I look at whether I think
somebody is going to have a long-term relationship and a long-term career,
as opposed to a short, quick in and out. Those don't make sense for
me.
I have to like
the client. I have to feel like they're good people and decent people
that I can talk to and relate to. I don't take a lot of young bands,
although I like to take a few because it's exciting to watch a young
band happen. That's a different criteria. I have to like them and feel
like they've got a passion for what they do. It will be based on either
a manager or a record company I know who says this person has really
got some talent. Or sometimes they come in with five or six companies
chasing them, and I get a sense that there is something there. To some
degree I trust my ears, although not completely because I know I don't
have great ears.
If I were in a band from Ocala, Florida and I was approached by an
attorney from Ocala who said he practices music law, thinks my band
is great and would like to shop our tape to some major labels, but he
wants a retainer of $3,500 up front. Is that something my band and I
would want to do?
Probably not. A lot of people will ask for a modest retainer. I think
that one is a little steep. I would be reluctant to give more than $1,000
or $1,500 to someone. And then I would only give them money after I
had checked them out very thoroughly and made sure that they were legit.
Some attorneys
have a business of doing nothing but taking fees to mail out letters
and tapes. People at the companies know that these guys don't screen
the tapes, and that they'll shop anyone who walks in and pays them a
fee. So your tape is worse off than if you were just sending them yourself
and got a nice rejection letter that said: "We don't take tapes unless
it is through a lawyer or a manager."
It is not my intention to diminish the value of small town attorneys,
but when doing a deal with a major label or publisher, wouldn't a band
or artist be smarter to go to someone who is in the game on a daily
basis and who knows who the players are and how they like to play?
Yes. I think that's true. I don't want to diminish small town attorneys
either, because they can be very bright, but it's sort of like any other
skill. If you aren't doing it day-to-day, and you aren't in the game
with it, you don't bring the same level of expertise to it, and you
don't bring the same sort of relationships and ability to get things
done as if you're always around and they're going to need other things
from you. Having said that, there is an attorney in Atlanta who has
a first-class practice that would rival anybody's. It's not a hard and
fast rule, but for the most part, it is tough for anyone to be seriously
in the business unless they are either in L.A., New York or Nashvile,
or commuting to those cities on a fairly regular basis with substantial
enough clients to kind of keep them in the game.
What are some steps an artist, band or songwriter can take to get
themselves discovered?
Creating a local buzz is one of the best ways. Playing around, developing
a following, promoting yourself locally works really well. At some point,
it comes to the companies' attention. You've got to get something on
tape before you can begin to shop it. It doesn't have to be expensive,
but it's got to be killer. It's got to have your best stuff on it. It
doesn't have to be more than three songs. Then you've got to get someone
like a manager or a lawyer to submit it, because the major labels won't
take it otherwise. Even with the independents, it will go much quicker
and at a higher level if it comes through someone they know.
How often do people actually get their songs ripped-off in the business?
Not very. It does happen, but not very often. You see that maybe one
case goes to trial every few years over it. There may be some settlement
if there is some merit to it. Most of the claims are totally frivolous.
The artists (who are being sued) would have never (had the opportunity
to hear) the song that they (the plaintiff) claim is similar. Maybe
it is, and maybe it's not. Most of them tend to be sort of nut claims.
It really doesn't happen very often. Having said that, I would still
take precautions. If you can't afford to copyright a song--and it's
probably not worth the money until you're actually going to exploit
it--at least mail it to yourself in an envelope and put it away.
I've been told
that mailing a song to yourself works and also that it doesn't. It works
to do one thing. It works to establish a date on which you created a
song. That's all that it does, but it does do that. You get a copyright
as soon as a song is put in tangible form--that means recorded or written
down. You don't need it to register the copyright in Washington, but
it is a nice piece of evidence. If someone claims he wrote the song
on such-and-such a date, and you can prove you wrote it before that,
then it helps.
So, people are under the mistaken impression that a song is not copyrighted
until they send it to the Library of Congress, when actually it's officially
copyrighted when it hits some form of medium, be that a recorded version
or a written version. You then need to register the copyright at that
point.
That's correct. You've read my book. I'm impressed.
Where did you grow up?
Dallas, Texas until I was 12. Then I moved to Los Angeles and lived
in North Hollywood.
Did you want to be just an attorney at first, or did you always know
that you wanted to be a music attorney?
No, I just wanted to be an attorney. I didn't know there was such a
thing as a music attorney. In fact, when I was a kid, there wasn't such
a thing. [laughs] I didn't find out that it existed until I was already
in my first year of law school. But I loved music, and I was always
around music. I played in bands. My stepfather was a disc jockey. I
always knew I had a passion for music. I didn't know I could put the
two together until I went to law school.
How does somebody become a music attorney? Is there a special track
in law school that is focused on music law?
There is not a lot you can take in law school. Almost all of the law
schools nowadays--although it wasn't true when I was in law school--have
some sort of entertainment law or copyright law class. I took copyright,
and I took contracts. Those were probably the two most valuable classes
in law school for me. If there had been a course on entertainment industry,
it would have been really helpful. I would have enjoyed it. Now most
of the law schools do. They didn't then. A lot of them now have entertainment
law societies, which they didn't have when I was in law school. But
there is no magic formula. It's a matter of persistence, and graduating
and doing the best you can in law school. Then you have to go out and
get a job at a firm where you can get trained. You have to get into
the industry, and that's where you can learn the specifics about entertainment
law.
How did you go about building your music law practice? What was your
first job out of law school, and how did you progress from there?
I actually went to work for a tax firm, as strange as that sounds. I
thought I might want to be a tax lawyer and/or an entertainment lawyer.
This tax firm said they were going to go into the entertainment area
and that I would be on the ground floor. I was there a year and a half,
and it became clear that they were not as serious about it as I was.
I decided to make a change.
I came to a
firm basically where I could get trained because they were already doing
a lot of entertainment work. The other thing I did was I just went out
and met everybody. In fact, that's my advice to anybody getting a start
in the business, whatever you want to do. Just meet everybody you can
get your hands on--all the young people, everybody out there. A lot
of the people I met when I got started, who were kids like I was, are
now running the companies and are in important positions in the industry.
How did you go about meeting them?
You go to clubs. You go to industry seminars. You go to industry events.
You go to charitable dinners. You get out and make yourself visible.
How much of you is driven by music and how much is driven by law?
Was it law first, music later, or music first and then realizing law
could be applied?
They were both sort of on parallel tracks. I played in bands all through
college and part of law school just because I loved it. I had a good
time with it and made some money.
How did you find time during law school?
On weekends. You've got to do something to have fun. I'd always just
sit around and jam with friends. I learned how to play banjo in law
school. I play banjo, guitar, piano and a little bit of accordion. (Did
anybody see The Paper Chase? I don't remember anybody "jamming" on weekends.
Cramming, yes--jamming, no! Ed.)
Many people think the Internet is the beginning of the end for record
labels as we know them today because an artist won't need them anymore
if they can distribute their product themselves. What is your take on
where this is all going and when, and if, we might start seeing some
significant changes?
I don't think we'll see any significant changes for seven to ten years.
I think it will take compression technologies catching up with wider
bandwidth before you can download music in any decent form to where
you could possibly compete. I do think it will radically shift the playing
field. Record companies will continue to exist, and record stores will
continue to exist I think. There is an experience of going to a record
store that you don't get from just downloading something off your computer.
The Internet
doesn't really give you the ability to market and promote, which is
a function that a record company would have to put some money into,
because when you go onto the Internet, there are thousands of sites.
How are you going to find one, particularly somebody's music you've
never heard of? There will be a way to do it, and it will shift the
playing field, because you won't need manufacturing, distribution, warehousing
or inventory. I do think there will be artists who break through the
Internet and come into a record company already having sold 200,000
units. Their bargaining power is radically different than somebody who
is off the street.
How long do you think it will be before ASCAP, BMI and SESAC have
their ducks in a row with regard to content on the Internet?
It's almost impossible on the Internet because you can't police all
the sites. You can only go after the visible targets like AOL, CompuServe,
Prodigy or somebody like that. You can't go after every little mushroom
guy with a computer in his bedroom because it is impossible technologically.
I really don't know. I think that they will certainly start going after
the visible targets and try to license them. There was a case with CompuServe
that got settled. Nobody knows how it was settled exactly, because it
was kept secret. It's really up for grabs.
Do you think that they'll try a technological approach, maybe some
form of encryption, where you can't play or copy the music without a
password?
I think that's what has to happen. If they don't do that, and we get
to the point to where you can send bursts of albums in ten minutes,
one guy will buy an album and then send it to fifty friends or post
it on the Internet. There are people who genuinely believe copyrights
shouldn't exist and that everything should be free. If we can't stop
that technologically, even though the law clearly would stop it, good
luck enforcing it. I think that it's got to be technological.
Do you think the price or market value of intellectual properties,
such as literature and music, might be driven down because the law of
supply and demand will be affected by the Internet?
I don't think so. I think the market will set a value for whatever it
is. I don't think the fact that it's more easily available is going
to drive it down. The United States still has the cheapest records in
the world by a long shot. Records in Japan can cost $25 to $30. In Europe,
they are easily $17 to $20. It's hard to conceive that we would drive
it down further. Economically, certainly the profit margin will be bigger.
You don't have the manufacturing and don't have to distribute and ship
it. You don't have to worry about returns. So, the companies will make
more money. Whether they'll pass that on, who knows.
I wonder what a nightmare that will create for European and Asian
record companies when somebody in Tokyo can buy the next Eagles release
from the United States over a wire? That will certainly level the price
out on an international basis.
It certainly will.
If you could change anything about the way the music industry currently
operates, what would that be?
I think I would make the deals a lot simpler. I think they've gotten
ridiculously complicated over the years. When I started doing this,
records deals were 15 to 20 pages. Now they're 120 to 130 pages. To
me it's sort of insane. I think that most of it is a waste of words
and paper and could be done a lot easier and a lot quicker. Admittedly,
the world is more complex, but I still think it's gotten way out of
hand. I would make things much simpler.
What is your favorite part of what you do for a living?
I love working with people. I like making things happen. I like the
marriage of art and commerce. I like taking creative people and helping
them relate to business, and taking business people and helping them
relate to the creative side. I like being in the middle and getting
things done.
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