Well, it’s never been and never will be the music capitals that LA, NY, and Nashville have been, thought it has had brief moments via the rise of particular genres, like Seattle.  D.C., being a transient town, has never been able to sustain a music scene.  Everyone who comes out of D.C. has to go to the other cities.  And you have a void when someone is cultivated and nurtured here and has to leave.  That leaves a void and critics turn on them; then after a few years they [the critics] welcome them back as always having been from D.C.

There’s not anyone in D.C. that’s going to invest the type of money and time into a musical artist.  The Record Companies are in other cities.  And that’s true even with the internet and self-production because there isn’t a ‘back office’ here to help people take the next step.  ‘Being from D.C.’ is about it.

Then again, if D.C. had a record company or a radio station to take a band to the next step, that would be a different story.  When WHFS was up and running, it was instrumental in promoting bands to the next level and visibility led to bands getting noticed elsewhere.  They’d be heard and picked up by other radio stations on the East Coast and they’d grow.  When they [WHFS] left, so did the promoting ability of the local-music scene, except for playing live in the clubs.

And what about acting and other performing arts?

Acting, et cetera—it’s the same basic deal.

Martin Lawrence was my first TV contract.  He was here at the downstairs office with his packed Toyota ready to go to L.A.  His first job was as a Busboy at Rob’s in the second coming of What’s Happening [see: What’s Happening Now!! (http://www.skooldays.com/categories/primetime/pt1051.htm)]. He went to LA and I never heard from him again.  So, D.C. is about representing people on the way out [to L.A.] and coming back in.

I’ve gotten Fox and Disney TV shows to pilot, but they’ve never made it to production.  You get a lot of record deals; movies are ad hoc.  Lately, local companies with entertainment products are looking for talent for spokesman, infomercials, etc.  It’s out there, but isn’t really institutional work.

This may be changing.  Discovery is spinning off local production companies.  I don’t know what’s available thanks to XM/Sirius are.  I expect work is coming out of that, but it’s not something I’ve worked on.

What special considerations or tactics do you employ to be an effective and profitable representative in the so-called “small market”?

First: Educate the client.  They need to know what they’re getting into.

Hopefully, you can help them with when not to make decisions on their own behalf without consultation.  Very few understand the nature of the business, which is understandable given that they’re artists.  At a fundamental level, they need education on how they MIGHT be able to make a living—how to get paid and how much.

They need to be warned against all the “star-makers,” whether they necessarily will be [made stars] or will even get paid.  There is a value for what they do but sometimes it’s more important to know when to ask for something in return.  It’s not just “don’t play for free,” sometimes it’s “don’t ask for money to play an opening slot… to play the opening at Black Cat (http://www.blackcatdc.com/)” when the opportunity to play at all is really beneficial.  It’s better to take the gig than ask for $10 grand just because that’s what someone else got [and lose the gig].

Second: Establish the rapport of trust so when telling them “no,” they aren’t just blindly trusting you but know you have their best interests at heart.

Third: Repeat.  It’s a circular thing and an ongoing process.  And, they’ll forget.

Here’s my Stephen Colbert question: Some say rock stars want to be comedians and comedians want to be rock stars; Are entertainment lawyers and agents wannabes too or are they just money-hungry leaches?

It’s about 50/50.   I don’t know, it’s not all agents, but all record company execs want to be rock stars.  Otherwise, it’s pretty evenly split.  I mean, if you ever knew a ‘70s, ‘80s, even part of the ‘90s record executive (when they still existed), they were in limos, private planes, flying 1^st class, and their bands didn’t [do likewise] until they were rolling in the money.  These were the A&R folks and meanwhile their acts were 4 to 5 deep in a van.

The first time I ever rode in a limo I had to tell clients it was their money and being deducted from their royalties!  Gladly, they went back from Four Seasons to Motel 6; and switched to the van from the limo.

For the most part, the majority of those that become entertainers do not go that way because they want to be stars: they do it because that’s what they are.  So many are touring now—and I’m not being derogatory, but they’re not “relevant” and maybe you call them golden oldies—they are fine going to small places and playing small audiences that are harkening back to the days when the performer(s) had their hit.  They may not like the travel arrangements and treatment they get exactly, but they are doing what they do.

Anyone who got into the business to get rich is a fool.  They have to look at their chances and I expect their chances are better if they were looking at an internet startup company.  The comedians are the class clowns that [somewhere down the line] someone said they could do it for a living.  It was not about “how much money can I make,” it’s a thought that they have what they like to do and can get paid for it, which is better for them than waiting tables [even if the pay is worse].

[The change comes] when they see others making money off them; then they say they want their share, but not until then.  When they see everyone making money, the light bulb goes off… then they see it.

I don’t think Paul McCartney said to himself, “I want to be richest man in England—a music mogul!” in the ‘60’s.  But when the Beatles got ripped off in their first publishing deal, he saw that that’s where the money is and not only wouldn’t get ripped off, but started buying.  Now he owns Broadway shows and has a fortune from music rights, but STILL he performs and wants to get up in front of crowds and I think the majority of performers fall in this category: they perform because that’s who they are.

What didn’t I ask but should have?

Hmmm… the most often asked is “How do I get started?”

I thought about asking that…

Unfortunately, there’s no one answer.  You don’t know what button needs to be pushed, so you push every one.  You make yourself available and build up knowledge of industry.  It’s really the toughest question to answer.

Feel free to pass on this question, but I’ll ask for the readers: Are you hiring?

No; and I’m never in that position because my entertainment practice has never been 100% of my practice and I’ve never had excess practice and so no need for associates.  I’m in a big firm and my entertainment law practice is just something I do as a specialty.  So I don’t have anything for them—an associate, intern, a clerk—to do.

Especially if they want to be paid!

Yeah, well once you’ve gone through nurturing process, and the turnover is so high, the last thing they [the client] wants to do is spend a year to get to know you just to be turned over to an associate because you don’t have time.  That’s the kiss of death.

If one of your bands is U2 and the others get back seat; they will jump when you don’t have time for them.  The people you [a performer] want to hire are the people so successful they don’t need you or your act.  The person who does have the time probably doesn’t have the contacts you need.

That’s a catch-22.

Yes, so it’s a “tough question,” comment above.  You need to sneak in and get the blind trust of competence and mutual respect.  The last thing you want is one side to embarrass the other in the first chance at a record company meet.  Most of the time it’s about pairing up with someone at your own level and you’re all learning as you go.  It’s not a very good system.

Then, the first thing they [the record company] do is demand the manager be dumped!  They recommend someone huge and the client doesn’t know why the big-wig would bother with them—it’s natural to think “what’s their incentive?”  And meanwhile, you’ve got this manager who’s been humping equipment and driving your van for however long.

But it’s tough to turn down because it’s the big break!

Right; and this person at the record company giving this lecture is probably taking another job in 6 to 12 mos.  Orphans at record and management companies are the lore of the business.  They are the acts left behind.  They came in with someone as a champion for their act and are left needing instead to convince someone to believe in them.  It’s like a pro-athlete signing with a team because they like the coach and he’s fired the next year.  The athlete is going to wonder, “Why is it again that I signed with this team?”

It happens all the time.  At first, I didn’t believe it when someone told me it’s the same 600 people [in the business] that just change jobs every 6 months.  The networks all do that—from CBS to NBC to ABC.

Thank you kindly.

Miles & Stockbridge P.C.

Practice areas: Entertainment & Sports, Business Litigation, & Real Estate

Education: University of Baltimore, J.D.; University of Maryland, B.A.

Selected to: Washington, D.C. Super Lawyers (2007); Maryland Super Lawyers (2007)

Robert Keene has a diverse practice that includes the representation of musicians, artists, and record companies.  Mr. Keene has been a member of the adjunct faculty at the Columbus School of Law, Catholic University of America, since 1991, where he has taught Entertainment Law.

His litigation experience includes major trademark infringement, commercial contract, insurance coverage, will caveat/estate, securities arbitration, accounting malpractice, tort, and injunctive cases, to name a few.

In his entertainment practice, Mr. Keene has negotiated and litigated talent/personal service agreements for personal management, recording, music and literary publishing, agency, sponsorships, endorsements, merchandising, television, modeling, motion pictures, and business management.

He has also negotiated and drafted licensing agreements for recording, animation, software and soundtracks and artist/producer agreements on behalf of both artist and record production companies, and counseled clients and litigated copyright and trademark infringement actions.

Mr. Keene has negotiated acquisition/option/talent agreements with Walt Disney, Fox Television and motion picture production companies for the development and production of children’s animated television series and documentary and dramatic motion pictures.  He has provided management and publishing administration of a national recording artist through album releases, national tours, videos, television and motion picture appearances, and provided business affairs and corporate counsel to record/production companies and recording studios.

So if you want more of the official bio- stuff, head on over to Bobby Keene’s firm’s website, but here’s the skinny: I was one of the “bad” law school students but for some reason felt compelled to attend the vast majority of Mr. Keene’s Entertainment Law classes (you can ask my student-peers about how rare that was).

He brought to the table what you look for as a student: a style that’s entertaining but not lame-shtick, genuine experience that he’ll let you know started in the trenches, and he’s there for you without pretension because at the end of the day it’s your law school bill—that’s my opinion anyway.

I called his office on a Wednesday hoping to arrange a time for an interview and was put right through to him.  After saying I was a former student of his, he self-deprecatingly apologized for the “experience” and asked what he could do for me.  Then, after graciously agreeing to 20-30 minutes, we talked for nearly an hour.  So without further adieu, here’s what the man had to say:

As your student, I really appreciated your commitment to making law classes engaging, often through humor; so has Spinal Tap’s return to the scene meant you’ve revised your material?

Thinking about it… I haven’t actually done anything yet to revise it because it’s a very workable model as I use it.  I thought about it when they got back together for Earth Day or Live Aid—when they were in England and had something like 35 bass players for one song.  I thought about it again recently when they were on Conan’s Tonight Show a few nights back.  I had seen them unplugged before that [at the Beacon Theatre] and thought about it then too, but I haven’t revised it yet—it’s still something I might do.

Do you see a correlation between academic rigor/educational pedigree and success in the entertainment field?

Not really.  It depends on the individual.

I remember back when record companies were still “record companies” you’d have the paradox of going to Warner Bros. with the Ivy-league lawyers in suits and ties and going to Elektra with the people in hockey-jerseys in the same role.  And that was all same company! [Warner Music Group].

A pretty good argument for pedigree is when you are dealing with the New York ‘good-ole boy’ network.  But a strong case is also there for a street-smart lawyer dealing with a band on road; that’s when you have to deal with problems on-the-fly and the 2-year turnaround for a law suit means law suits are not an option.  So, it depends on the individual and the job.

I remember early on the Ivy League lawyers saying goodbye and I immediately ran into and had to deal with a raving lunatic Englishmen wearing a hockey jersey whose every sixth word was… uh, ‘sailor speak.’ [You end up dealing with both.]

My regular piece for Entertainment Agent Blog is centered on working with Menna, who is 5 years old and wants to do acting and possibly other performing arts; have you worked with minors in the past?

Yes.

—How have you handled the revocable contract issue?

[Under a standard arrangement, if a minor is party to an agreement then they may revoke/void that agreement.  To avoid the option to void/revoke—especially before the minor reaches the age of majority, a party contracting with a minor may seek to have an agreement certified by the court.  In non-legal-speak certification means having a parent/guardian sign-off on the deal.]

In most cases, I’ve explained it to them.  To the extent that when they realize the enormity of the process, they usually retreat back and don’t go through with it.  It’s usually just [better to] make some hand-shake deals until you need protection on it and then ‘go-for-it.’

I just did one for “America’s Got Talent” and it was a 13-year-old girl and her father didn’t know whether to sign.  I advised the father, “hey, she’s 13 and you’re thinking good things and you need to also think about the bad.  They won’t change the contract when numbers are vast [when she’s achieved success], but if she performs poorly and they decide to run a promo, she’s already lost all rights and control.  They won’t change because she’s 13 and more impressionable than an adult who’ll potentially fall on their face.” [Mr. Keene was paraphrasing.]

This was not a direct client.  She made first cut and was expected to give away every right in the book.  My advice was that I wouldn’t let my own daughter do this, [which included] taking the risk of being on the YouTube and NBC sites for years to come making a fool of herself.  This kind of advice can obviate the need to go further [i.e. continue counseling].

The laws out there are more to protect employer than employee.  When you are signing a minor you are just left open. [When representing the minor] you typically are telling the minor they’re better off not going through the process because their value will increase with time.

I have advised partners, but have never appeared before the labor-commissioner here in Maryland.  On the other side of things, I wouldn’t dare invest a lot of time and effort into a young person unless you’ve gone through the process of validating the contract.

There are alternatives though, like contracting in shorter stages—6 months at a time, for example.  If there is no long-term risk for the studio, then they don’t see a reason to go through the process. You know, if there isn’t a long-term personal service contract, there’s not much to void.

—Have you dealt with someone who’s a child’s agent and isn’t the parent?

No.

I recall you had some great stories from your experience—what’s the greatest blunder by a representative of an entertainer you’re aware of or had personal experience with?

I know I have some good ones that aren’t me but I’ll throw myself under the bus.  One thing that made me feel the most foolish was pooh-poohing a Guns ’n’ Roses audition.  I was taken to see a band at the Roxy [on Sunset Strip] a record company A & R person and they didn’t impress me as being very good.  They were like every—this was in ’85 or ‘86—every other band.  My friend was not happy; he was saying the record-company is going to give them $1 million and I was arguing they should spend the money on something different, something more original.  And yeah, they turned out to be Guns ‘n’ Roses, so…

I know as soon as we hang up I’m going to start thinking of more stories.

[To be continued…]