music attorney Donald Passman

This Article Originally Published January 1997


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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