What Nancy Thinks

My wife, the newly minted PhD. Nancy McGuire Roche just started her own blog where she intends to write
“about cinema, television, culture studies, popular culture, gender studies, feminism, and perhaps even pedagogy”. Those are her words. Don’t tell her that I don’t know what pedagogy is. She’s awfully smart and entertaining so I highly recommend reading this, especially if you are interested in film.

Here’s the link:


http://nancyroche.wordpress.com

The Music Industry is Dead. Long Live the Music Industry 2.0

Adam Gold’s article “The Music Industry is Dead. Long Live the Music Industry 2.0” in the August 25 issue of the Nashville Scene is the best overview of the current state of the music industry, let alone the Nashville music industry that I have read in some time. Here’s the link:


http://www.nashvillescene.com/nashville/the-music-industry-is-dead-long-live-the-music-industry-20/Content?oid=2610420

Gold does a great job of talking to all the major players and synthesizing a lot of information into something that is both enlightening and thorough. It’s also optimistic, which is nice to read in this day and age.

Everything You Ever Wanted to Know About Entertainment Law (But Were Afraidto Ask)

I get those flyers in the mail from the National Business Institute advertising upcoming Continuing Legal Education seminars on a near daily basis. I’ve attended a bunch of NBI CLE classes in the past and I generally think that they provide a pretty good value. Having said that, I had to laugh today when I received a brochure for an upcoming seminar called “Entertainment Law 101”. I know two of the presenters and they are excellent attorneys. What I found amusing was the breadth of the program. In 7 hours they propose to cover
1. Film Industry Basics
2. Music Industry Basics (including record deals, 360 deals and publishing deals)
3. Copyright law
4. Literary Purchase agreements
5. Acting Agreements
6. Legal compliance in fund raising and securities law
7. Insurability of Entertainment risks

If I had time I would list all of the individual sub-category listings.

I think they are going to cover more in one day than I cover in the entire semester entertainment law course I teach. Clearly any one of these topics merits at the very least an entire day of study. Perhaps the real point of the seminar is to scare other lawyers away from the practice of entertainment law (as if they shouldn’t be scared away already). That’s generally how I feel after I spend a couple of hours in an estate tax seminar.
If you’re interested though, here’s the link: http://www.nbi-sems.com/SemTeleDetails.aspx/Entertainment-Law-101/Live-Seminar

I should also point out that the Nashville Bar Association puts on excellent Entertainment Law CLE’s twice a year, at the end of August and the beginning of December.

Incorporating Touring Activities

I have just been reading articles about the horrible tragedy at the Indiana State Fair, where five people died when an outdoor stage collapsed. One article pointed out that this was at least the third such incident this summer.

I am often asked why I advise artists to incorporate their touring businesses. This is the main reason: liability. Undoubtedly, there will be lawsuits arising from the Indiana State Fair and undoubtedly the artists involved will likely be sued – even if they had absolutely nothing to do with the accident. Even if the artists ultimately prevail in court they still have to go through the necessity of dealing with the potential liability. The purpose of incorporating is to create a shield between this potential liability and your personal assets.

This is a real threat. Several years ago one of my clients managed a hugely successful country artist whose touring corporation was routinely sued for every person who slipped and fell or got hit with a random bottle of Wild Turkey at their concerts. On another occasion I represented a band that chose to tour without any type of liability protection. When a belligerent drunk got himself beaten up at an outdoor festival that they appeared at, they had to endure more than a year of costly litigation before the case was dismissed. They had to live with the uncertainty that their personal assets (houses, etc.) were at risk.

The liability protection afforded by proper corporate protection is a good first step in managing the risk inherent in touring and performing. The cost is negligible compared to the benefits and peace of mind such protection can provide

Mike Tyson's Tattoo

I have resisted writing about this for as long as I have resisted seeing the movie but by now everyone has heard about the recently settled lawsuit arising from "The Hangover Part II" specifically over Ed Helms replica of Mike Tyson's face tattoo.

Victor S. Whitmill, the tattoo artist who first gave Tyson his signature Maori-warrior inspired facial tattoo sued Warner Brothers for "reckless copyright infringement".

The concept may appear silly or sinister until one is reminded of the purpose of copyright --which is to protect "original works of authorship" including works of visual art. I have never represented a tattoo artist but I have represented professional photographers and graphic artists and I can attest that their rights are routinely violated by others who are either ignorant or unconcerned with their intellectual property rights in and to their own work. In this respect, Mr. Whitmill's lawsuit against the makers of "The Hangover Part II" has real significance.

Because the lawsuit settled we will never get to examine the more fascinating issues of the case – Warner Brothers' apparent defense of fair use (i.e. Mr. Helms' tattoo was allegedly a parody of Mike Tyson's tattoo) or my initial question – was Mr. Whitmill's tattoo "fixed in a tangible medium of expression"( as is required by Section 102 of the Copyright Act) but scholars will still have an opportunity to debate these issues for some time to come.

Termination of Assignments of Sound Recording Copyrights

A few weeks ago I wrote an article for Billboard Magazine about the Copyright Office amending the rules regarding termination of assignments of copyright. The editor wisely omitted the last sentence where I mused about whether the Copyright Office would ever take a stand on the issue of artists attempting to terminate their assignments of sound recording copyrights.

Now the New York Times has addressed the issue in an August 15 article “Record Industry Braces for Artist Battles Over Song Rights”. The article is a great primer on this complex and controversial matter. While it is clear that one of the purposes of the Copyright Act of 1976 was to give songwriters and other authors the right to recapture their work after 35 years, it is not clear whether or not the same rights apply to recording artists. This is because the termination provision specifically excludes “works made for hire” and nearly every recording contract from the 1970s on refers to sound recordings a “works made for hire”. The problem for the record companies is that the Copyright Act also has a very specific definition of “works made for hire” and sound recordings are not part of that definition. Further most record contracts go to great lengths to state that the artist is an independent contractor and not an employee of the record company, which further damages the work made for hire argument.

The New York Times article also addresses some of the confusing side issues in this debate. For example, how will the law address other “authors” of a sound recording including producers and engineers? How will the law affect artists who sign contracts in other countries subject to different laws (e.g. every major band from England)?

Although there is much discussion and debate on the issue, the battle will properly commence until January 1, 2013 when works created on or after January 1, 1978 become eligible for termination. Things are going to get very interesting. I would urge any recording artist who executed an agreement during the 1970’s to have that contract reviewed by a lawyer asap.

Contracting With Minors

Watching a Justin Bieber documentary with my daughter (there goes my indie cred) I am reminded that the median age of music performers is getting younger. This trend has been apparent since Taylor Swift's initial success. I am sure that I am not the only Nashville lawyer who has faced a singing 10 year old in my office. However, signing minors to contracts is serious business and is often misunderstood. Legally, minors can't contract. Hence contracts signed by minors are generally unenforceable, unless a very specific process is followed. This process varies from state to state. In Tennessee the process is covered by the "Tennessee Protection of Minor Performers Act". T.C.A. Sec. 50 5-201 which sets forth a court approval procedure for "contracts pursuant to which a minor person is employed . . . or agrees to perform or render artistic or creative services". The process may include a provision by which the court appoints a guardian ad litem to represent the minor's interest.

Interestingly, the statute contains an apparently little known section that requires a trust to be set up for a portion of a minor's earnings. While most practitioners are generally aware of this statute very few people seem to be aware of this section, meaning, I am not sure how often the statute is followed in short-term employment situations (such as hiring a child actor for a small movie role or local commercial). However for any type of long-term personal services contracts such as a recording agreement, publishing agreement or management agreement. court approval is absolutely essential in order to have a valid binding contract. There are also other issues to consider in these types of agreements, including choice of law and jurisdiction. Sometimes these contracts are affirmed in more than one state. If your company is thinking about contracting with a minor, the important thing is to not ignore this court approval process.

new article in Billboard on termination of copyright grants

I have a small piece in the Legal Matters section of the July 30, 2011 issue of Billboard entitled "Confusion Emerges Over the right to terminate U.S. Copyright Grants". It's fairly arcane but could be beneficial to those who assigned copyrights after 1978 pursuant to agreements dated before January 1, 1978.
Unfortunately, there does not seem to be an internet link to the article but left me know if you're interested in reading the article.