Sunday, February 22, 2009

Collaborations and Joint Works

The other day, I had a potential client ask me an intriguing question. He was a writer/musician and wanted to know how to protect his work when he was collaborating with other people. More specifically, he wanted to know if he was creating work that was capable of copyright protection when he was recording music in the studio with other people. Essentially, he was adding keyboard parts to someone else’s work.

Note that this was not the stereotypical Nashville situation of two songwriters sitting down to write a song. The law is fairly clear that in that instance, they are creating a joint work (defined by the Copyright Act as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”) But even that situation is not always clear cut. I was once involved in a dispute between three writers where there was some disagreement over whether they had each written a third of the song or whether the third writer’s contribution was somehow less than that of the other two.

My friend’s question concerned the more tricky area of studio collaborations.

I think that industry custom is pretty clear with respect to studio musicians who are asked to lend their expertise to creating a finished product. But what about people who engage in less well-defined collaborative processes? I am constantly reminded of the English case of Matthew Fisher, Procol Harem’s organist, who convinced English Court that he should be entitled to 40% of the total share of the copyright to “Whiter Shade of Pale” because he contributed the seminal Bach-inspired organ intro. The case was reversed on appeal, but apparently Fisher has been granted leave to appeal again. Johnnie Johnson, Chuck Berry’s long-time piano player and Johnny Cash’s cohorts from the Tennessee Three were less successful in their attempts to convince courts of their authorship rights. Even today I read about one of the session players on “Electric Ladyland” grousing that he should have received royalties on one of that album’s ethereal jams (recorded 41 years ago).

I think the question comes down to intent. Did the parties intend to create a joint work? That can be difficult to prove in the absence on tangible evidence.

Several years ago, a lawyer who specialized in hip-hop, told me that he had created a short one-page document for his clients and their collaborators to use in the studio to memorialize their mutual understanding of their respective authorship shares at the time of creation. I didn’t see the need for such a document at the time but I certainly do now (especially when nearly every hip hop song on the charts is a collaboration of some sort). Whether the issue concerns a band splitting publishing or a studio collaborator adding an original part to a composition, these issues need to be determined as close to the time of creation as possible and not in a courtroom decades after the fact.

Friday, February 13, 2009

Oliver Wendell Holmes said it...

We equally believed that those who stood against us held just as sacred convictions that were the opposite of ours and we respected them as every man with a heart must respect those who give all for their belief”

--Oliver Wendell Holmes

I finally finished watching Ken Burns' stunning documentary of the Civil War. I was struck by this quote from Oliver Wendell Holmes which prefaced the 8th episode of the series. This is something that we should try to remember in litigation, mediation and politics.

Monday, February 9, 2009

Let Us Now Praise Randy Piper

I am an inveterate collector of records and other things. So, I am always fascinated by stories of other collectors and their misadventures. I was horrified to learn the story of Randy Piper, whose rare collection of Jack Daniels whiskey and memorabilia was confiscated a year or so ago by Tennessee Alcohol Commission Agents who claimed that Piper was selling liquor without a license because he bought sold and traded Jack Daniels memorabilia with other collectors. This absurd abuse and waste of state power was apparently settled out of court by Piper agreeing to forfeit some of his collection to the state and paying a fine. An article in the January 21 issue of the Tennessean also mentioned that Piper had incurred attorney’s fees of $40,000.00

I can’t really think of an analogy for record collectors; other than in England where it is apparently illegal to buy and sell transcriptions discs form the BBC. I know that years ago there used to be a rumor that records companies could have someone arrested for possessing promo copies of an album (this always begged the question- where do you think promo copies come from?).

At the end of the day, this seems like too narrow a topic to suggest changing state law to protect collectors like Piper and other fans of 100 year old whiskey bottles; on the other hand, we are talking about Jack Daniels.

Wednesday, February 4, 2009

Vive La Revolution or Something

There was a great quote in the Wall Street Journal’s December 29th edition in an article about Bon Iver, written by Shelly Banjo and Kelly K. Spors. “The internet has been like the French Revolution for the music business,” says Panos Panay, founder and CEO of Sonicbids. “The aristocracy ‘has faded’ as the cost of distribution, production and even getting connected has come down. Now, he adds, anyone with a niche and devoted fans can make a living”.

This was from an article about how the artist Bon Iver secured a record deal and an international following presumably from posting his home made recordings on his Myspace page, then being reviewed by online tastemakers like Pitchfork media and Brooklyn If you read the article, it seems like he did all of this without venturing too far from his secluded cabin. I am not that naive but this is sort of the gospel I preach to any artist with any sort of a track record: stop looking for that mystical connection with a record company (you know, the one with unlimited funding that understands perfectly how to market you and your music). Your time and capital is better spent trying to figure out how to market your music directly to your fans.

The problem I see in this whole picture is the plight of the new artist. I think that the internet based niche marketing approach can work exceptionally well for that artist that has a foothold but what about someone who has never been heard? From the Wall Street Journal article, it appears that these folks have to be vetted by the aforementioned tastemakers. (There is something to this whole viral marketing thing; Brooklyn Vegan even made me aware of a brand new Neil Young video and song on You Tube that I probably would have never known about otherwise). But how does one get on that radar screen, without being obnoxious or too blatantly obvious?

That’s the question.