[INTERVIEW] MARK QUAIL

[INTERVIEW] MARK QUAIL

Here’s a straight knowledge drop from music lawyer, Mark Quail. Often referred to as the ‘techno attorney’, Mark works with a slew of music producers, managers, record labels, and artists including Richie Hawtin, John Acquaviva, Art Department and many more. He took some time last week to talk with MJDLive where he dished his advice for DJs on when to hire a lawyer, his well-informed thoughts on digital sampling, downloads, streaming, copyright, how he got started and lessons learned. Get a glimpse into the business of music, with insight into historical trends and thoughts about the future in this exclusive, in-depth interview with one of the industry’s top lawyers.

For the DJs, producers or musicians in the house wondering about the law side of it all, this one’s for you!

Thank you for taking the time to talk with me today - I’ve always been interested in the inner workings of the industry. 

No problem, I’m happy to help out!

You’ve been at this for a long time and I was just wondering, have you always been interested in music? How did this whole thing start for you?

I knew I was going to be a lawyer since I was 11 or 12. A teacher in grade school said, “You’d be good as a lawyer” and that just kind of stuck in my head. Lawyers seemed to make a lot of money and I thought, ok, this is interesting. In high school, I remember reading an interview with music business people in Rolling Stone magazine, so this would be the mid 70s, and there was a gentleman there who was described as a music lawyer, and I said to myself (laughing), wait a second, you can be a lawyer and work with musicians? By that point I was a music fanatic. I’d caught the record buying bug, probably a few years before that, but definitely by ’75/’76 when I had a little bit of spare dough. I was buying rock records constantly. Once I saw that there was such a career, that kind of guided me through. Going through a BA at university was just to get to law school, and when I got to law school I took whatever courses they had related to music, which, at that point in time really was only one on intellectual property.  I also did a directed research course on copyright law and digital sampling. So, I knew early on that I wanted to be a lawyer, and it was just a matter of matching what I wanted to do career-wise with my passion, which was music. 

That’s amazing. So you’ve been in the industry for decades and you’ve seen a lot of changes, what are some of the biggest patterns or changes you’ve seen?

I think the first one that I saw definitively was the rise of digital samplers in the mid-80s. That had a massive impact because, for the first time, guys were chopping up other people’s records, both the record and the song, and putting it in new records - that raised all sorts of legal issues. And, as you know, that sort of thing first became public knowledge in the world of rap music, it was fundamental to the way rap music was produced. I mean, you had people lifting other people’s melodies here and there in the past, 1930s, 40s & 50s, but in the 80s, with the widespread digital sampling technology, that was the first time the record was being copied verbatim. It was a digital signal, it was 0’s and 1’s and it was lifted and dropped into another record and referenced that way. So, that raised a whole host of copyright issues. It gave rise to a few law suits, it gave rise to whole new departments in major labels that would clear samples, because ultimately, that’s the way that issue was resolved. There never really was a Copyright Act amendment dealing with all that. The business moved faster than the law could change and it was simply handled as a business affairs matter as the years wore on. So that would be the first instance in the mid-80s. 

The second I think would have to be the rise of CDs and the demise of vinyl. That was pretty cut and dried. It was like one week in, I think about 1989, where the record companies had planned this. They had just said, “Okay, we’re not producing vinyl anymore, everything’s going to CD.” It wasn’t a gradual changeover, it was pretty definite and set. That changed things quite a bit because the pricing of CDs was closer to $20, vinyl records at the time I think had peaked out at somewhere around $7 or $8. So all of a sudden the record business was starting to make a lot more money. The records were still selling by the ton, but now the gross income going to the record companies was a whole lot more. So the sales of CDs throughout the 90s really turned the cash tap on for major labels. They could reissue all those old records that had only been on vinyl prior to that, and they were making a fortune off reissues. And of course, many new releases were doing very well too. So that hit the industry with a lot more cash. 

And was that cash mostly going to the labels, or were artists seeing some of that?

Well, artists were making a little bit more money, especially new artists at the time. The old artists would have been stuck with their crummy royalty rates. But the new artists would have been able to participate in that, so it was spread around a bit. But, what it really meant was that record companies were flush with cash in a way that they had not been before. And what that meant was that they were able to take more chances on signing bands. I think the old ratio was they’d sign 10 bands and really only one would sell, but the one would sell so much that it would cover the losses of the other 9. So the money, in that sense, was spread around to artists, but it wasn’t a sort of equal payment to musicians and artists at the same time, it was the record company dropping a boatload of dough on some potential big star, only to have that particular record in most cases not sell. And the artist would get dropped and that would be the end of that. 

And then the third change, as most people are probably aware of now, was the rise of Napster in about 2000. And that is where the problems with piracy that we’re facing today started.  When digital files could be fired down a pipeline and there was a loss of control over the distribution channels by which record companies had made their money. Distribution was the main power that any major label had. They could get the records into stores, and they could get paid for those records. If you didn’t pay the record company, you the record store weren’t going to get the shipment in the next week and you’d be out of business. So the record company’s distribution channel was their main power. When they lost that power, starting in 2000, with the advent of digital downloads, it sort of turned the world on its head. And what was once a 40 billion dollar a year business internationally is now down to something like 13 or 14 billion dollars internationally. So, yeah, it’s a radically different world now. 

That’s incredible. So from now looking forward what kinds of trends or patterns do you see emerging? 

I think digital downloads, which have been in decline now since about 2013, maybe 2014, I think that’s going to continue. I think the streaming services will rise and continue their rise, whether it’s Spotify or Apple music or something that may come out tomorrow, I don’t know. YouTube may continue it’s all powerful presence by doing something slightly different too. But what I see is a world where there’s music on demand. Ideally, the consumer will be paying for it and it will be treated like a utility. And that money will go into a pot that will then be distributed to those whose music is being streamed. On top of that, I hope that the royalty systems that are in place, the so-called “neighbouring rights” for the performance of the record and then the performance rights related to the song, there’s kind of two separate copyrights that are triggered when a song is played and when a record is played, those systems have got to be improved. They’re kind of in place now, but they’re not the best. So, between the monies that the streaming services will pay to the record companies and then to the performing rights organizations, I would hope that we could re-birth this evolving industry into something good again. 

During the Depression in the 30s, most of the labels that had grown up in the 20s went bankrupt and the few that didn’t bought up all the other ones. It was an interesting business back then but it wasn’t huge. Well, that turned into a powerful cash cow by the 70s, so it took 40 years to recover from the Great Depression. Now I’m hoping (laughing) that the streaming world won’t take 40 years to recover and turn into something good again. I’m hoping that can be done in the next decade. It’s been 16 years since the advent of Napster, a few of us are still around and we’ve survived and various record companies and musicians are still going. And I hope that we all can continue and that the new generation of musicians and record label owners will be able to thrive in the future. So, I’m hoping for something better in the next decade. But I’m pretty well sure it’ll look like a streaming service with the payments and the royalties that’ll generate. 

What’s your favourite part of what you do? And how would you describe what you do? 

What I do is I negotiate contracts and put deals together. And that kind of is the favourite part of my job - I like negotiating contracts. I pride myself on knowing the business of music inside out and then applying that knowledge to a contract to ensure that my client, whether it’s a record company or an artist, is getting the best deal possible. And it’s interesting in this world too, because the best deal possible doesn’t mean that one side wins and one side loses, it means that both sides have to be happy, because if they’re not, you’re going to end up divorced really quickly. And that’s not fruitful in a creative relationship, whether you’re a music publisher signing a writer or a record company signing a performing artist. It’s an interesting job in that case. So when I’m negotiating against other lawyers, you know, things can get heated sometimes if somebody digs in their heels on a certain point, and one of us disagrees with the methodology, but for the most part, we lawyers all kinda get it, and we strive to make sure the best deal points are possible. We need to ensure everybody’s happy because then that should lend itself to a fruitful and profitable relationship for both parties. So, that’s kind of what I enjoy the most from the legal side. I mean, it’s a great world to be in, yes you’re going to music festivals and yes, you’re backstage and hanging out with some pretty creative and inspirational people. I get to travel and go to good music centres all around the world. But when it comes right down to the legal stuff, what I’m kind of known for and happy to do is pounding out contracts that will serve the purpose of my clients. 

Very cool. So, although perhaps born out of necessity, at what point does an artist need a lawyer, in your opinion? I was just curious if you had one piece of advice for DJs? 

Oh sure, I get that question a lot, and the answer is this: you should have a lawyer before you have a manager. And mostly because you will sign a contract with a manager and you will need a lawyer to negotiate that contract. But you won’t sign a contract with a lawyer. The relationship with attorneys is simply one of engagement. You’ll sign an engagement letter with a lawyer specifying the type of advice that the lawyer will give on entertainment related matters and that’s it. The client can hire and fire lawyers at will. I often say, you can have as many lawyers as you can afford. So, having a lawyer first is kind of crucial because the money you might spend on an hour’s consultation can be of good value. In that time the lawyer can set you straight on what to do and what not to do right out of the gate. You’re not guessing at that point, you’re certainly not signing anything that could jeopardize the next few years of your career, in a sense put you “on hold” if you sign a bad deal and you’re in with somebody who won’t let you out of the deal. Timing in an artistic career is crucial. If you miss your timing, all other things being equal, you might miss out on your career. So, having that type of perspective and that type of advice at hand, early on, is crucial. 

That makes a lot of sense. What are some of the lessons you’ve learned or most meaningful take-aways from your work and your own career? 

I’m fortunate that most of my clients, in fact pretty well all of my clients, listen to me. They stay out of trouble that way. One of the reasons I got into music law was because I kept reading about musicians from the 50s, or blues musicians and whatnot, who had been ripped off, by either their record company or their manager.  I was always astounded to hear that somebody who had had a big hit at one point in their career, was now living in a trailer park in Florida or something like that. And I’d hear these terrible stories and that just made me mad, and so one of the things that I wanted to do as a lawyer was to protect those who needed it. So, I get into the business, and I’ve been doing it now for 26 years as a lawyer and about mid way through, say 15 years in, I kept seeing some of the same things over and over again and I realized, sometimes it’s not the record label or the manager that rips off the artist, it’s the artist shooting themselves in their own foot. And that was kind of an eye-opener mid-career when you realize this, you see the patterns over and over again, and you realize this guy or girl is doing it to themselves. And fortunately, I haven’t had to save too many clients from themselves. I’m gratified that they listen to what I say and follow the advice. But that was one big realization.  Any naiveté I had before, well that was now gone, having had many years experience with many different types of artists and personalities. 

The other take-aways from the whole thing are, don’t sign anything unless you know what you’re signing. Certainly, another take-away if you’re an artist and you’re starting to make some money, sign your own cheques, meaning don’t trust anybody with your finances. You are where the buck stops as an artist. And if you give too much authority to your managers or your business managers or your accountants, you might find yourself in a bad situation. I’ve seen loads of instances with big name artists who’ve sued former managers and former accountants for mishandling their money. Bottom line is you’ve got to be responsible for your own affairs, and I put that succinctly when I say, “Sign your own cheques.”  

What inspires you? 

New music. You know? It’s always music, right? But with the emphasis on ‘new’. It’s those people, those musicians, that are doing something underground, unexpected, that when you hear it, whether it be in a club or at a festival, in your car… when you hear it on a proper sound system, and it’s something new, you get the shivers up your back and that alone is an experience I’ve that been fortunate to have over and over again. And you never know where it’s going to come from. But when you do get it, it is inspirational and it does help to drive you forward and keep you going. Whether you be involved in a record label with that sound or you’re representing an artist with that new sound and helping them through the beginnings of their career.. Yeah, it’s just the innovation that inspires me.  Bound up in that are the creative forces and the artistic temperament that goes into taking in the world at that point and then turning it into some bit of audio that captures the spirit of the times. Then everybody else listens to it and says wow, I feel this too, and lo and behold you’ve got a hit on your hands. That’s very inspirational.

Plus, I guess the other thing too is that I’ve met a lot of cool people. And I’m still in business with a bunch of them, and that’s kind of cool. I’ve got longevity with a really good crew of other business people and musicians and everybody’s still vital in what they’re doing. They’re finding new ways to channel what they did in the 90s, and every bit of it is vibrant. That’s inspirational to be a part of and to play the role of the lawyer keeping everything on track. Making sure the way they see things, actually comes to pass. 

Amazing. So to tie it all up, speaking of newness, what’s next for you? What are you most looking forward to? 

Well, I’ve been working on a bunch of projects. For the past 2 years I’ve been working with Richie Hawtin on this new DJ mixer that was just announced on May 4th, so that cat is out of the bag. 

I’ve only heard incredible things about it.. 

It is a very interesting piece of hardware, and it is a piece of hardware, it’s not software which was the trend up until now. This is the equivalent of a new guitar and it’s a different approach to what a DJ console can be. I’m hoping that the newness of the features that Rich and Andy Rigby-Jones have built into this thing are such that people say, yeah, this is the next phase of what a DJ needs as a tool to be able to sound at that next level,. So that PLAYdifferently mixer is obviously one thing I’m going to be watching very closely having been involved right from the get go. 

One of the other things is a movie that my business partner, John Acquaviva, was involved in and one of the artists I work with named Olivier Giacomotto did the score for. It’s a movie called The Red Man. It takes place in the electronic music world, but it’s kind of a cross between a Roman Polansky thriller and a Brian De Palma film noir, psychological-type drama. The movie is finished and we’ve had it in a few film festivals and it’s done very well. John is off to Cannes next week to the film market. We’re looking for distribution right now. It’s the first time I’ve been involved with a film to that degree, as the production lawyer. But I knew the director/scriptwriter, Jimmie Gonzalez, both John and I went way back with him and when he came to us with this idea and the script, we thought, yeah this is something that we can fund, so we all made it happen together. 

That’s incredible, you’ve got your hands in a lot of pots, that’s awesome. Thank you so much - it was so interesting to hear you talk!

Thank you, Mandy for allowing me to do all that. 

Yes, of course!

MJDLive would like to thank Mark again for his time and insight.  

 


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