Music Lawyer David Fenton
We spoke to the Musicians’ Union’s in-house solicitor David Fenton to find out how he ended up combining his legal training with his passion for music, and to discover some of the most common queries he deals with.
Place of work?
How long have you had the job?
What does a typical day involve?
The office opens at 10am and I check messages and emails. Then it’s a question of prioritising the work-load. A lot of what I do is giving legal advice to members or colleagues, answering their queries and advising on contracts, band bust-ups, copyright ownership, trade-mark infringement, or even simply how the music industry works. I always try and provide members with written advice so they have something to refer back to, and we have a substantial amount of information in the MU Handbook to help with that. But some queries are best dealt with by phone or face to face, so there are always calls and meetings to attend. And then I may be involved in re-negotiating trade agreements, or supervising the Union’s other legal services, or considering data protection issues or the impact of new legislation, whether with the TUC, or other industry bodies, or colleagues. No two days are the same, which is good, and although some queries crop up almost daily, others I still have to research before I can find the answer, which keeps me on my toes.
What type of queries do you most frequently encounter?
Probably the most common problem for all musicians, not just MU members, is non-payment for, or cancellation of, work, whether that be a gig, a recording session, a composing commission, a tour, etc. Probably every musician, even the rich and famous, will encounter a problem like this at some stage in their career. We have one lawyer who deals exclusively with these claims and recovers a substantial amount for members every year through the courts. But difficulties can arise if there is no written engagement contract, or if there was a verbal agreement but it was not confirmed in writing and is disputed now, or if it is not clear who the contract is actually with, which is often the case where agents or trading names are involved. Sometimes we have to list all the possible hirers as defendants on the claim form and ask the court to decide which one was the contracting party. That shouldn’t happen if you take care to find out who you are contracting with.
The most common questions I get asked are “Can you get me out of this contract?” followed closely by “I’ve just been sacked from my band. What are my rights?” and “Someone’s selling my tracks on the internet. Can you stop them?”. Generally speaking if the member had their contract vetted by lawyers on their behalf before signing there are more likely to be ways and means of terminating the deal. And if the band signed a partnership agreement – which the MU provides free of charge if the band are all MU members or join – then what happens when a band member leaves or the band splits up should all be set out in that agreement. And I think musicians are more aware these days of the online take-down procedures most decent internet sites have for dealing with copyright infringements.
“No two days are the same. Some queries crop up almost daily, others I still have to research before I can find the answer”
What do you think musicians really need the most education on? Are there any obvious areas where you find people often misunderstand the law or have misconceptions about what they should be doing?
Many musicians are well educated not only in music but in the music business. Being a musician is their profession and they adopt a professional approach to their career. They have a general knowledge of copyright law, they have their band name registered as a trade mark to protect the goodwill they have built up in it, they have partnership or hire agreements to cover their legal relationships within the band, they get all their long-term contracts in writing and checked by a lawyer, and if they do have to make a verbal contract (e.g. for gigs, studio bookings, etc) they follow it up with written confirmation of the agreed terms. It rather depends what aspect of the industry the musician is in, or aspires to be in, as to what it would be most useful or even vital for them to know.
As regards common misconceptions, in the absence of any written partnership agreement, the Partnership Act does not always have an answer for every issue in dispute that arises on a band split or sacking. It was enacted in 1890 and not drafted with the music industry in mind. Some important provisions do not apply if the partners agree something different, and it is not surprising the remaining band members will often recall doing just that in order to deny the sacked member a share of the spoils. And what exactly is covered by the partnership? Just live performance? Recording? Songwriting? That’s not always clear. Then applying the Copyright Act and the Partnership Act can give different copyright ownership results, so if divorces between married couples can get messy, band divorces between four or more musicians can get that much messier. Litigation may ultimately be the only option but it is most unlikely to be cost effective unless the band has been very successful, and often the sacked member no longer has any money to pay for an expensive court case. So band splits and sackings can often go unresolved when there is no partnership agreement.
And there is no such thing as a standard recording, publishing, management, etc, contract, especially now 360 degree deals are more common. Just because the company appears to be friendly does not mean their contracts will be fair or will be drafted with the musician’s protection in mind. Once the company have the musician’s signature the wooing stops and it’s down to business. It is the musician’s lawyer’s job to try and ensure the musician’s protection under the contract so they should always get it checked especially if it is a long-term deal. Music contracts are not consumer contracts, they are business-to-business deals. So you don’t get a cooling-off period to withdraw if you get cold feet, and the courts are not there to rescue you from signing a bad deal.
“The most common question I get asked is: 'Can you get me out of this contract?'”
Highs of the job?
I went into law to help people so I love it when a plan comes together – like winning a legal claim or getting a member out of a bad contract or situation, so they can move their career forward and avoid further problems with what they now know.
Lows of the job?
Telling members that if they had come to the MU first, and taken advice before signing, they wouldn’t be stuck in a terrible contract that I can’t get them out of.
“Just because the company appears to be friendly does not mean their contracts will be fair”
Who are the people who’ve had the biggest influence on your career and why?
Ultimately David Bowie probably had the biggest influence on me musically and inspired me to start my own band, The Vapors, in 1978. But when I was 10 I saw a Beatles gig, and that’s probably what started me off. Then there were so many great bands in the 60s – the Stones, the Kinks, the Small Faces, Captain Beefheart, The Doors. Then when I started playing in folk clubs Leonard Cohen, Donovan , Dylan, Al Stewart and Neil Young were an inspiration. And can I mention Devo, and Kasabian, and the Killers, and the Chilli Peppers…?
As regards my career in law, the rest of my family were all teachers and that definitely influenced me to take a different route. And I quite admired Lord Denning for his impact on shaping the law. But having qualified as a solicitor before starting the band, it seemed a natural progression to go into “music law”, first in private practice and then at the MU, and put my experience in law and music to good use.
How did you get the job?
I qualified as a solicitor in the early days of punk, but after a year or so in legal practice took time out to try and fulfil my musical dreams. With the help of John Weller (Paul’s dad) and Bruce Foxton, The Vapors signed a record deal in 1979 and I landed a publishing deal with EMI MP. We had some success here, in the US and Australia over the next couple of years, and after the band split I spent the next 10 years writing, performing, sound engineering, producing, managing bands and generally avoiding a 9-to-5 office job.
When I eventually returned to the law in 1993, one of my clients was the MU who gradually realised how much they would save on legal fees if I worked for them in-house. As their first in-house lawyer, I pretty much had a blank canvas, and I think you’d have trouble finding another membership organisation anywhere in the world now that provides a more comprehensive range of legal services (not just mine) to its members as a free benefit of membership.
How can we get your job?
Qualify as a lawyer and become a professional musician (or vice versa) then learn how the music industry works.
The Musicians’ Union is a globally-respected organisation which represents over 30,000 musicians working in all sectors of the music business.