Tomorrow Never Knows: Don Draper Does the Math

I am a huge fan of "Mad Men".  I am also a huge Beatles fan and once I discovered that the show’s  trajectory was chronological,  I have been anticipating Don Draper's discovery of the Beatles.  While we have had nice little references in the past (Don buying his daughter Sally the latest Beatles’ record, Don trying unsuccessfully to meet the Rolling Stones to discuss a television commercial) nothing prepared me for the visceral excitement of watching and hearing Don drop the needle on "Tomorrow Never Knows".  Matthew Weiner got this exactly right.

                The next day we learned that the show paid approximately $250,000.00 for the synchronization license and master use license i.e. the right to use not just the song but the Beatles' original recording on the show.  Every music lawyer knows what a coup it was for the producers to get the master use rights as well as the synchronization rights to "Tomorrow Never Knows".  I thought it would be fun to guess what the various interested parties might have made on this deal.  Understand this is pure conjecture, based on traditional record company/publishing company economics.  The Beatles’ story is not traditional. The story of how Lennon and McCartney founded a publishing company, then lost it, only to see it end up in the hands of Michael Jackson and Sony has been reported many times (apparently most explicitly in a book called "Only a Northern Song" that I am still waiting to get my hands on).  Additionally,  everyone is aware of the fact that the years of litigation between the Beatles and EMI mean that the Beatles most assuredly do not have a traditional 50/50 split of license fee income with EMI…but assuming that they did –

                Then, one has to also assume that this deal involved the traditional split of 50/50 between master use license and synchronization license.  That is not always the case but it is a good rule of thumb.  Under this scenario the publisher of the song, Sony/ATV would receive $125,000 of which $62,500 would be paid in equal shares of $31,250 to Paul McCartney and the heirs of John Lennon (as an aside it looks as if Lennon's share of the copyright to the song was renewed in 1995 in the names of Yoko Ono, Sean Lennon and Julian Lennon).

                From the master use side, typically the label EMI (the parent company of Capitol) would split the master use fee 50/50 with the artist which means that it would pocket $62,500 and pay out approximately $15,625 to each of the Fabs or their heirs.

                Again, all this is mainly illustrative and is not meant to presume to know the intricacies of Apple's finances.  However if anyone knows more details about this deal please share.  In the interim, I  can wonder what Don Draper's reaction would have been had he heard the original "Anthology" version of "Tomorrow Never Knows" and what Don Draper, the ad man would have thought about paying $250,000 to use a song in a television show.

One Direction v. One Direction

Why do I know about the band "One Direction"?  Because I have a teenage daughter.  It's the same reason I am acquainted with the work of Justin Bieber.  I was surprised to learn that that the members of One Direction were English, but not surprised that they were put together by Simon Cowell in the classic boy-band tradition.

                However, I was actually shocked to discover that Mr. Cowell's incredibly successful organization apparently overlooked the fact that there was already an American band with the same name, with a federal trademark registration.  There is nothing to prohibit the  band from using the "One Direction" mark  in England but they appear to be infringing on the US band's federal trademark.  The US group has of course filed suit.  This trans-Atlantic state of confusion has gone on for decades.  For example, the English Beat had to adopt the "English” qualifier in response to a claim by the LA group, “The Beat.”  Likewise the British band Squeeze was briefly known in this country as "UK Squeeze".  Conversely the British band "The Birds" allegedly took legal action against the American "Byrds" when they made their famous first trip to the UK back in the '60s.

                What amazes me is that anyone could be unaware of a trademark registration in this day and age when  the US Patent and Trademark Office has an up-to-date online database of pending and registered marks and any band can be readily Googled.  It used to be much more complex.  In order to search up the availability of a record company name or band name, you had to undertake a costly and not always accurate media search.  You also had to contend (as you do now) with the fact that a party can generate common law rights in a mark even without a registration.  However to overlook a pending registration or an actual registration is just strange.

                As for One  Direction US v. One Direction UK – I predict a settlement before too long.

Church Music and Copyright Law

 I get phone calls and emails all the time from people asking about the legalities of performing or recording music in their churches. Some of the questions are simple and some are quite complex. One of the students in my Music Industry Law class at Trevecca Nazarene University in Nashville, Anna Price, just wrote an excellent primer on the subject of the intersection of the church and Copyright Law and with her permission, I am reprinting her work here. This should be really helpful.


Law and Light


 Copyright Law can seem like a cruel school master at times, watching and listening for any piece of work that might have been first used by another. Though that is a little exaggeration, it can seem like that at times. A person may innocently create something that is all too much like another’s work, and be greatly penalized for it. A person may not know any better and uses another author’s work in a way that violate that author’s right given by law under the Copyright Act. Whether knowingly or innocently infringed, the Copyright Law cannot be ignored.

 Though a tough and sometimes unclear subject, it is in the best interest of the people wanting to use protected intellectual property to know what is permitted and what is not under the Copyright Act, especially in the case of churches. The law is not meant to harm, but meant to protect and encourage authors and their work. The execution may be flawed in some cases, but the intent is good. The use of music and other copyrighted ideas in church can be a tricky subject, but the law does allow churches the freedom to “display” music and other works of authorship in services as well as provide protection for the authors.

 It is important to know what the church cannot do under the Copyright Law. It is also important to realize that even though fair use gives church services some liberty, it does not always protect from copyright infringement. The laws of copyright can feel like a leash on the dog; but it is especially important for the church to be aware of the law and obey it in order to act right under the law, and set an example to her people and the world. “Therefore submit yourselves to every ordinance of man for the Lord’s sake…as to those who are sent by him for the punishment of evildoers and for the praise of those who do good.” 1 Peter 2:13-14

 Some basics the church should understand about the Copyright Act are what the rights of the author(s) are, and what the church may be unwittingly violating. Directly from the Copyright Act Section 106 are the Exclusive Rights as follows:

“(1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.”

 These six rights belong to the author(s)/copyright owner(s) alone. In order to legally use a piece of music or literary work - whether that means printing the lyrics or performing a song or another use - of another for any of the purposes mentioned above, permission is required.

 There is an exception to these protected rights known as the Public Domain that church may be familiar with. It does not mean that every song in the hymnal is free to use, unfortunately. Public Domain actually means that a copyright has expired. The current life of a copyright is the author’s life plus 70 years, after this time period the copyright expires and becomes public domain. This makes things a little easier for churches who sing old hymns because there are many great songs that are now part of the public domain. There is an issue to be aware of in the matter of public domain, however. Though a song may be public domain, there may be recorded performances of the song that are not. This is something to be aware when looking at public domain works.

 The Copyright Act also provides copyright limitations known as “fair use” which may be helpful in providing some allowances. The details of fair use are useful for the church to know. There are four things that a person, but more specifically a church in this matter, needs to look at, and ask if he/it is truly acting under the limited liberty of fair use. The four criteria for fair use are as follows:

“1.) The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes, 2.) The nature of the copyrighted work, 3.) The amount and substantiality of the portion used in relation to the copyrighted work as a whole, and 4.) The effect of the use upon the potential market for, or value of, the copyrighted work.” (Section 107 of the Copyright Act)

 The Copyright Act section 110 part 3 gives more specific guidelines for what fair use looks like in a church service:

 “(3) performance of a nondramatic literary or musical work or of a dramatic- musical work of a religious nature, or display of a work, in the course of services at a place of worship or other religious assembly.”

There the church has listed what she is allowed to use freely. The Copyright Act has provided leniency to use certain works without permission of the author so long as it falls under the above mentioned guidelines in a place of worship for the purpose of worship or teaching. These provide some protection from copyright infringement, but depend on the circumstances. Fair use does not always protect from copyright infringement. It is better to know for certain that the church is acting properly in regards to the law. If there is any uncertainty about whether or not an act of the church containing copyrighted material is considered fair use under the Copyright Act, then the church should ask a professional lawyer to be sure.

 Something to be aware of is that this provision does not include the ability to show a full movie without permission. Clips might be used as part of the lesson so long as it falls under the category of fair use or has permission, but to be able to show a movie for entertainment or other purposes at church permission is needed.

 Another pressing copyright issue churches should be aware of involves the recording and broadcasting worship services. This is yet another matter that needs attention. The sermon itself is not the issue, unless it copies another’s work, but if the recording of a church service contains copyrighted music the church needs a license. The desire to want to include the music in the service on a recording is understandable, but the church should be aware of the copyrights involved with recording it. Permission is needed from the copyright owner to record a copyrighted song. It may seem like a small matter, but once again it is good for the church to be right with the law in order to maintain an honorable presence in the community.

 Thankfully, in October of 1988, a new Performance Royalty Organization was launched with this very purpose of helping churches with copyright matters. This company is called Christian Copyright Licensing International, but more commonly referred to as CCLI. This is what CCLI’s mission statement says they exist for,

 “To encourage the spirit of worship to churches, organizations, and Christians individually, so that they may enhance their worship expression spontaneously, conveniently, affordably and legally.” (www.ccli.com).

 CCLI exists to help bridge the gap between the sometimes confusing world of copyright law and churches. CCLI helps provide churches with the resources and legal services they need to ensure smooth operation of worship services. Christian Copyright Licensing International provides licenses for copyrights, rehearsals, streaming & podcast, and videos. They also provide sheet music. They have resources of movie clips for use in lessons. They have different licenses, and they will explain what can be covered by the license and what cannot. Since 1988, CCLI now helps over 200,000 churches with copyright law, giving them the knowledge and ability to act legally and honorably more easily.

 The details that CCLI requires under the Church Copyright License reports be made for all copy uses every 6 months, but they encourage weekly reports be made to make the task simpler. They require the song titles being used, as well as the writers, copyright notices, and the church’s CCLI licensing number. In order to print the lyrics in a bulletin or project the lyrics on a screen, CCLI requires those four things to be listed at least once at the bottom of the page. All of these things help pay the authors their due, and give the church secure, legal resources to draw from.

 CCLI is not the only company available to help churches with these legal issues and provide licenses for copyrighted materials, but they are probably the best. As mentioned before, CCLI now helps over two hundred thousand churches.

 Much has been said about copyrights here, but churches may also want to know what kinds of costs are involved in violating the Copyright Act. There are statutory damages that will need to be paid to the copyright owner, which are thousands of dollars. There are also the court and attorney costs that will need to be afraid in the case of violation. These risks may be something churches want to be aware of. Not only will a case of infringement cost thousands of dollars that a church probably does not have, but it will cost respect.

 It is not very often that churches are actually sued for infringement, but the risk is growing and becoming more possible. Technology and knowledge have increased, and even the ways to access and use new technology have become better and easier in some ways. Ignorance will not be an option for long. Fair use may give a semblance of protection, but churches need to be careful. It is in the best interest of churches to be prepared and act responsibly in this day and age.

 All of these details about copyright law can become overwhelming - especially for a church that does not know any better. That is why CCLI exists. It is also why it is important for churches to be smart, to be aware. Churches need to be educated about and prepared for the realities and legalities of copyright law. Not only is there a huge risk involved if copyright owners should try to sue for infringement, but more importantly for the churches is the risk of their reputation.

 Church is more than a meeting place on Sundays. She is the representation of Christ on earth. She carries a great hope for the world. She is a light, and a city on a hill. She is God’s people. It is clear in Romans 13 that God wants His people to be an example, to obey the law. “Owe no one anything except to love one another, for he who loves another has fulfilled the law.” Romans 13:8 Even in as small or big a matter as copyright law the church can set the example. Be aware. Be educated. Be legal. Be safe. Be strong.

 List of sources: The Bible Websites: http://www.copyright.gov/fls/fl102.html http://www.churchmarketingsucks.com/2009/02/fair-use-and-your-church-part-1/ http://enrichmentjournal.ag.org/201002/201002_042_Copyright.cfm www.ccli.com http://www.copyrightsolver.com/mythsolvers http://www.christianitytoday.com/cbg/1999/mayjun/9y3038.html http://www.brotherhoodmutual.com/index.cfm/resources/ministry-safety/article/copyright-laws-and-fair-use/

The Daughtry Lawsuit

It’s a cliché because it's true. Behind every successful album or artist there is a lawsuit. The latest lucky winner is former American Idol winner Chris Daughtry who is being sued by three former band mates (from his pre- Idol days) for "constructive fraud," "breach of fiduciary duty," "unfair trade practices," and other deceptive and wrongful conduct.

I have not had a chance to review the complaint but other than the allegation of breach of fiduciary duty, the other claims seem a little strong for a case of this nature They appear to stem from the fact that the plaintiffs are claiming to have co-written two songs with Daughtry who allegedly then combined the songs on his first solo album and gave himself sole authorship credit. There is apparently also a claim to income from other songs including the hit "Home" based on an alleged agreement to share all revenues equally. The reports I read did not indicate if this agreement was oral or written, but to my mind that’s going to be a key factor.

As in all these cases, there is probably some truth to both sides and both parties are going to have some interesting evidentiary problems. I don't know the situation with Chris Daughtry and his former band mates but I do know that most of this could have been avoided by having a written partnership agreement in place. I try to make this point to new bands whenever I can and I usually get ignored – mainly because no one wants to spend the money to prepare a partnership agreement or other governing document – but I can tell you from experience that such an agreement, which defines band members splits and sources of income (i.e. is publishing included or not?) will always go a long way in protecting artists from lawsuits like this, or conversely can protect your right to income if your former partner gets rich and suddenly forgets what he or she once signed.

On Client Testimonials

I am a student of marketing. I read an awful lot on the subject, although I am lousy about implementing what I learn. One recommendation that I have never been able to adopt is the use of any kind of testimonials. These might run the gamut from publishing a list of representative clients to asking clients to say something nice about me. I have always attributed my reluctance in this area to my inate shyness but I was happy to learn that law practice management guru Ed Poll is at least one expert who agrees with me. In a recent column, Poll reminds us that by and large clients value their privacy and confidentiality. Poll writes "lawyers can ask clients for permission to use their name, but I believe most clients are subconsciously reluctant, even if they overtly allow it". Poll also points out that the American Bar Association and many states restrict certain types of lawyer advertising and that by adding the necessary disclaimers, the net effect of the testimonial could be lost. I know that when I went to law school my legal ethics professor preached client confidentiality above all else.

I suppose context is everything – all clients are happy to promote the fact that they just signed a big deal but who wants to publicize the fact that they have just been served in a messy divorce or been accused of financial impropriety?

Anyway, I am glad to have found some support for my views on the subject. I want my clients to recommend me but I also want them to know that I respect their privacy and take that seriously. Having said that, I want to take this opportunity to reprint (anonymously of course) two great client testimonials that I have been saving for a while. These always make me feel good. They are as follows:

"Thanks Trip for taking care of those a--holes for us "and "Thanks Trip, you are the fifth WannaBeatle".

Chancellor Irvin H. Kilcrease, Jr.

I read last week about the death of former Chancellor Irvin Kilcrease, Jr. If I recall correctly, I tried my first real case in front of Chancellor Kilcrease back in the 1980’s. He was patient and unfailingly polite with me as I systematically forgot each of the Rules of Civil Procedure (remarkably, we still won). I noticed those same qualities in Chancellor Kilcrease every time I appeared in his court until the time he retired in 2003. I also remember thinking that he really took the time to understand the litigant’s arguments before ruling.

I really admired this gentleman and I don’t think we’re going to see a lot of judges like him in the future.

Let us Now Praise the Boy King Of Tokyo

I can’t remember the exact year I actually met Bill Lloyd but I remember that I heard him before I met him.  Vanderbilt’s radio station played his song “Feeling the Elephant” often.  Having just moved back to Nashville to begin a career in entertainment law, I took this as a good sign.  Nashville was producing power pop – with great lyrics and lots of guitars and I was in the right place.

                I finally met Bill through my dear friend Mary Divney.  For some reason we ended up at Bill’s apartment and I admired his record collection – just like my own, only on steroids.  Since that time I cannot tell you the number of artists Bill has introduced me to or increased my appreciation of (the Beach Boys for starters). 

                But all of this is kind of insignificant next to the fact that Bill has been a great friend for the past 25 years or more and I’ve had a rare vantage point to see his development as an artist and a song writer.  Bill has had a fascinating parallel career as a successful country song writer/artist and as an indie rock solo artist. The music that Bill has recorded with Foster & Lloyd is cool (and I think has developed an almost archetypal sound in country music) but for my money, its Bill’s solo albums (five proper albums plus scads of compilations, etc.) that set him apart.  I was always proud of the fact that my law partner and I were able to negotiate a “solo indie rock” exclusion into Foster  & Lloyd’s RCA recording agreement and that his first solo album came out about the same time as his major label country debut.

                Bill’s solo records have never really varied sonically over the years, and that’s a good thing: lots of guitars, drums and smart insightful lyrics. Part of the reason for this is that he’s used many of the same cast of characters on his records.

                Which brings us to the new album: “Boy King of Tokyo”.  The difference on this album is that Bill plays all of the instruments as well as handling all of the vocals.  This of course puts him in that unique camp of overachievers like Paul McCartney, Todd Rundgren and Emmit Rhodes.  It’s also astonishingly tight – you’d never know this was one guy.  The instrumentation does not detract from the quality of the songs.  “Boy King Tokyo” is a wry  bit of autobiography (dig the cover art), “The Best Record Ever Made” is a nice sequel to the earlier “Cool and Gone, “ and the songs “Let It Slide,” “Up in the Air” and “Where Nobody Cares at All” all feature that  rare combination of rock and roll sensibility and (God help me) maturity. 

                There’s a lot more here.  You need to own all of Bill’s records but if you don’t have them this is a good place to start.  The CD is available through Bill’s web site (billloydmusic.net) and through all the usual download sites.  Here’s to another 25 years of friendship and great records.