Interview With Rush Hicks, Entertainment Lawyer

Rush Hicks is a well-known Entertainment Lawyer in Nashville, TN.  His most notable clients he lists are "Randy Travis, Take 6, Larry the Cable Guy, Luke Bryan, Bryan White, Leann Rimes and Paramore". To get some insight into the music industry I asked him a few questions.

Where did you attend law school and how to do obtaining training for the specific role of an Entertainment Lawyer?

Hicks: Mercer University.  The training really came after I finished law school.  I took an unusual route in that I attended a semester of Belmont after law school taking music business classes.

What drove you into the specialized field of Entertainment Law?

Hicks:  I have a music degree from college and have always played music.  It seemed a natural for me.

How many years have you been practicing law?

Hicks:  30 years and I've represented record companies, artists, songwriters, music publishers and managers. regulations to follow.

Being interested in venue management I asked Rush Hicks if he had ever represented a music venue, unfortunately he had not. He did however offer some words of wisdom for someone looking to open a music venue. "Be extremely careful. Lots of local regulations to follow."  He is correct; many communities have sound ordinances, building codes, and require special permits to have live music.

In a past blog I talked about Performance Rights Organizations and how a venue must obtain a license from one or all three of them to play music.  I asked Hicks if he had an experience representing a client dealing with a PRO issue. 

Hicks:  I did represent a club in Johnson City, TN that was sued by BMI.  I convinced the club owner to settle because he was violating Copyright Law.

It can be a long and expensive journey fighting a PRO lawsuit.  Hicks was very ethical in convincing the client to settle, the club was in the wrong by not getting a PRO license.  Maybe they did not know or maybe they were trying to save money. Either way, it is very important to know what is necessary to obtain when running a club or venue.

If you want to open a music venue, you may not need to pay the extra money to hire a specialist in the entertainment law field, but you should get a lawyer. Most lawyers have a basic understanding of the legalities of starting a business and can help you get an organized and informed start to your business.  The courthouse will also be your best friend.  That is where you will go to get all your permits, licenses (not PRO licenses) and you can learn about all the local regulations you will have to follow.

Rush Hicks did have some advice for bands as well. I asked him when he thinks a band should bring in a lawyer to guide them through the legal processes a band faces.

Hicks:  From the very beginning.  It's expensive for a new band to hire an entertainment attorney, but it's well worth it.

When artists like Paramore come to you, do you find that they have everything legally in line? Songs copyrighted, band agreements, contracts, etc.  Or is it just a mess of backlogged work.  Do you take care of these things for the band or do you leave that up to their managers and labels to sort out?

Hicks:  I represented Hayley and the band from the beginning of her career so I handled their recording and publishing contracts, incorporating the band, trademarks, and touring agreements.

Hayley from Paramore was brought up in a music business oriented family who knew the importance of making everything legal. Most bands don't have that advantage so they do much of these tasks themselves and then once they start getting success is when they turn to a lawyer.  Rush Hicks handles documents that confuse most band members, even if you are small band, it could be wise to seek legal help rather than investing in equipment or studio time.  The perk about Entertainment Lawyers is they work in the Industry, meaning they know people who could potentially help your band succeed.  This can be applied to a venue owner as well; the Industry is all about networking.  Even if you are paying to network with your lawyer, the connections he can bring to you could be priceless. Networking options or not an Entertainment Lawyer as Hicks describes is there to "offer business advice and assistance to help them keep more of their money." 

Finally, I asked Hicks if he had any words of advice for a young band.

Hicks:  Make great music and then hire an experienced business team to protect your interests.

Can I be sued for that?

As a band or a venue owner there are many things you may do on a daily basis that could get you sued if the right person came into the establishment.  Bands, you have it a little easier but do your venue a favor and ask a few questions before you write your set list.

Does the establishment have a PRO license and for which PROs?


Establishments that make money off of music need to have a license from a Performance Rights Organization (PRO).  There are 3 organizations out there in the USA that represent artists, ASCAP, BMI, and Sesac.  Each have a different line up of artists and songs that they collect royalties for.  Every time a song is played on the radio, or in public, it is making the copyright owner money.  If you play a cover of a Bruce Springsteen song you could get the venue in a $30,000 lawsuit, just as a band did in 2010 at the Connelly Pub in Chicago. (Read full story by clicking the link) Although the lawsuit was dismissed by The Boss himself after finding out that his PRO, ASCAP had filed it, many venues aren't so lucky.

Some venues will tell you up front, no cover songs, if you thought it was because they hate renditions of "Hit Me Baby One More Time", you are probably right but its mainly because they don't pay the several thousand dollar fee for a PRO license.  Many ASCAP artists know they can make money even as a small indie band by reporting their tour dates to ASCAP, do the venues a favor who are cutting their budget and exclude them from your tour schedule if they don't hold a license.  You are red flagging them to the PRO, and if it comes back to the venue, it might stop live music at that location.

Ask first, you may be informing the venue of something they didn't know they needed, in the end helping them, and they will appreciate it. Sign up for ASCAP as well so that you can add another revenue stream to your bands income.

Being taught all I know from one of the vice presidents of ASCAP, I am a little bias on my love and respect for PRO's but ponder this,  music is work, and some venues can not afford to pay every band that plays, if you register with a PRO, track your performances, and help venues get licensed then they are going to want more bands to play, to make up for the costs of the license, inevitably getting you another gig and more performance royalties.

Does someone else have the same name as us?


Businesses and Bands need to do some research to see if they are using a unique name or logo. It is not required to register your name with the government and essentially trademark it but it will help prevent being asked in the form of a cease and decist letter to stop calling your band something or make you change your companies name. Trademark Infringement is basically using a name or logo already established and in use by another entity. No matter the size of the business or band, if someone feels like you are gaining business or awareness because the name is recognized by people who think they are listening or visiting another entity, they have the legal right to sue or ask you to stop using the name. A small punk band in  Colorado was politely asked to rename their band 'Elway' to something less related to John Elway, the football player. Read the full story at Punknews.org. It may seem silly, but John Elway has his name trademarked, so that companies can't use it to make money off him.  If the band were making tshirts that looked like Denver Bronco jerseys with their name on the back, you can see how this would create a legitimate issue, right now it's just comical.

A business has to watch their names as well.  A local hub cap retail store, in business for nearly two decades made the news when a car ran into their building.  The bad day was ended with a cease and desist letter from Auto Zone stating that its customers could be confused that the small local business called the Hub Cap Zone, was associated with Auto Zone. The small business managed to continue under its chosen name, other companies though have to spend thousands of dollars to change their names to avoid a lawsuit.  Examples of bands with this issue or who were challenged, Fall Out Boy, The Academy Is (previously The Academy), Sublime with Rome (previously Sublime, with different lead singer of course), the list is pretty lengthy, these are just some notable ones.

Trademark Infringement laws are a necessary evil.  In the examples above, they are pretty comical that anyone would bother paying a legal team to get these bands or companies to stop using the name, but if not tackled right away, it could become a large issue.  What if the band not only made jersey like tshirts but got a new lead singer who happened to be named John...and the name changed to "John and the Elways".  A club books them and bolds the words John and Elway and you are really confusing people who now think John Elway is going to be there.  I went to a concert recently to see the band Saves the Day.  Been a slight fan for years, and was really excited to see them playing a show in my little town.  After paying the cover, buying a drink, and getting ready for the event, I was extremely irritated to discover the band was Save the Day, not the iconic punk rock band SaveS the Day.  I was in a music nightmare watching a horrible 90's alternative rock cover band. The cover band made money off of the money intended for another band.  That is why trademark protection is so important.

That song isn't ours but can we say it is?

Copyrights are stolen probably on an hourly basis.  Just writing a quote from a book on a wall without siting the source can get a business in trouble if they didn't negotiate the rights to use it.  This goes for bands as well, just because someone may not know the song isn't written by you doesn't mean you can pretend it is.  I will leave band names out of this, but a few years back a band from Wisconsin started making a name locally for themselves.  They decided to into the studio and start recording the tunes that were making fans come out to the local shows.  The EP was taken off the shelves and merch tables when a band from New Jersey asked them why they were singing all their songs and saying they were their own.  The Wisconsin band had discovered this band on Myspace and just started to steal all their songs.  Though hundreds of miles apart, nothing really in common, the bands had discovered each others music, essentially ending the Wisconsin bands career in music.  Many local venues once they heard about their deceit, stopped booking them, fans were hurt, friends were shocked, band members irate with the thieves, no one was happy.

Even with legal approval to use another bands music, you can still get in trouble.  Take the song "Bittersweet Symphony" by the Verve, I'm sorry thats incorrect, its by Mick Jagger and Keith Richards.  Do you recognize another song in there?

It has a sample of The Rolling Stones "Last Time", that which The Verve got a license to use. According to Andy Klein, the Rolling Stones business manager at one time, they used more than the license said, and sued the Verve for in the end, complete rights to the song.  Mick Jagger accepted the Grammy for "Bitter Sweet Symphony" that year, and then exploited the song to movies, commercials, and anyone that would give him money for a song he had no part in the making of.  The song that was sampled was actually another artists orchestra version of the song, not the original that Jagger and Richards had written.  Check out the similarities, they are there.

If you read further into this you will learn that Andy Klein didn't own the copyright to this particular version of the song, just the Stones' songs from the 1960's.  He was later sued if I recall by another ex manager of the Stones who did own the song, who initially went after The Verve first to obtain money for use of his song.  The Verve was so young and not interested in legal battles, they barely put up a fight which is why they lost the rights to the song. (read more here)

In short, don't use other peoples music, if licensing a sample, use less than what you requested to use, double check to make sure you are negotiating with the correct owners, and NEVER give your rights away, even if it means fighting for them. The song truly is a bitter sweet symphony.

Those are the three big intellectual property issues that can cause a band or music venue big issues. Learn from the stories here to protect your band, music, logos, trademarks, and rights.