#StraightOutta CONTRACTS

Some of you might have been or even might be #srtaightoutta a bad contract and money because of a legal dispute. The truth of the matter is that artists and companies (A&C's) find themselves in legal trouble as a result of lack of knowledge. I am sure that if it could have been prevented, then, it would have been.

It is very imperative that A&C's conduct any and all of their business dealings with a signed contract. There are countless numbers of cases regarding breach of contracts, ambiguous terms, misunderstandings, and un-negotiated terms or fees. Contracts are very crucial in the entertainment industry. While they can be helpful for business dealings, they can also be a detriment to one's success. A contract can either make or break AC's. Therefore, it is important to have contracts written with as much detail as possible. A contract should consist of active terms and conditions along with anticipatory terms in the event of a breach or termination. The less ambiguous terms are, the better the contract.

When using any contract, make sure the terms included in it are legally effective. Most importantly, make sure they are reviewed by a professional attorney who specializes in the entertainment industry. Interestingly, an attorney who does not have experience with contracts for the entertainment industry may not be as helpful in preparing the document as opposed to an attorney who is specialized in that area of law. 

The following are some contracts that I have found to be some of the most helpful types of commonly used contracts for intellectual property in the entertainment industry. Although these contracts might be useful as it, always revise a template contract to make it personal and more effective.

Intellectual Property

• Copyright Assignment Agreement
• Copyright License Agreement
• End User License Agreement
• Invention Agreement
• Patent Assignment Agreement
• Patent License Agreement
• Proprietary Information Agreement
• Technology Transfer Agreement
• Trademark Assignment Agreement
• Trademark License Agreement

Torn between the two: Protect your copyright or let a fan be a fan?

Copyright law can be very vague. Therefore, many find it hard to determine when infringement actually exists or not. The general rule and purpose for copyright infringement is to prohibit the use and/or re-creation of intellectual property without the permission from its rightful owner of rights. Although infringement exists in that sense, interestingly, the federal copyright law also permits the use of certain intellectual property under the Fair Use Act.

I have come to find that the Fair Use Act is ambiguous and confusing. Why is there a median balance dilemma when it comes to determining what constitutes fair use or not? For instance, more and more companies are cracking down on fans and customers who use their intellectual property.  According to an article by the American bar Journal about the issue, companies are torn between protecting their intellectual property and allowing fans to re-create the intellectual property as a means of expression.

Photo Credit as listed on ABA Journal

Adam Baldwin as Jayne Cobb. Creative Commons/Deb Roby

According to the article, after a TV show was cancelled, fans began to knit and sow hats in honor of a symbolic hat that was worn by one of the characters from the show.  As a result, counsels have debated whether the re-creation of the hat, by fans, goes beyond freedom of expression and constitutes copyright infringement. As the article further explains, companies are also torn between the two because although they want to protect their copyrights, they also do not want to come off as jerks to their fans.

I understand the concern of companies to protect their copyrights, but I also understand that fans feel the need to express their love for the TV show. I do not think that companies should go after fans who re-create items. Many fans are very loyal and supportive to the entity or the thing that they are fans of. Without fans, companies would cease to grow. I think that companies should allow the freedom of expression by their fans. If companies should add any limitations to their copyrights, it should be that they should not allow fans to use the company name on the re-creation of the specific use/re-creation of the intellectual property. Other than that, this issue seems so borderline that I think it would be in a company’s best interest to just let fans be expressive and embrace the Fair Use Act to justify the situation. After all, where would a company be without its fans?

TBH: Are your marketing efforts ACTUALLY effective or ineffective?

Digital marketing is an extremely vital tool in the entertainment industry. While it can be debated on which marketing tools are the best, marketing efforts should be personalized and catered specifically to each artist or company (AC). Just because one entity’s marketing strategy worked for them does not mean the same strategy will work for another AC. In addition, some AC's even waste A LOT of time and money on useless marketing strategies. Therefore, it is important to consider which strategies actually work. According to an article by Music Think Tank, it is crucial to know certain tips in regards to music marketing in order to prevent ineffective marketing efforts. 

Furthermore, the evolution of the digital era has called attention to numerous legal issues that exist in the industry. Although music marketing is important, it is also important to know how they can also cause legal issues. The digital marketing world is so large and full of intricacies; as you will see in the picture below of a digital marketing map. Knowing how to navigate through digital marketing correctly determines a major part of the success or failure of an AC's marketing efforts.

As the picture above indicates, digital marketing has its own world. Many AC's have never even looked at digital marketing from this view either. But, in order to utilize marketing strategies effectively, one must understand the world of marketing. According to Hallam, a digital marketing company from the UK [and also a Google partner], the following categories in digital marketing have legal issues surrounding them:

·      Website Compliance

·      Email Marketing

·      Blogging and Social Media

·      Copyrights

My suggestion would be for AC's to conduct thorough research and gain knowledge about the laws in place for their entertainment and/or business marketing. Although some AC's might be familiar with using the categories mentioned above, these categories are frequently used incorrectly; and by that I mean, a large quantity of people use them incorrectly.

In order to ensure and avoid lawsuits, it is best to be aware of the regulations established in order to make digital marketing efforts effective. To me, if an artist or company's marketing is ineffective, they end up having to work harder. Therefore, [apply the cliche] work SMARTER, not harder.

To help get you started, here are 7 topics to consider for your digital marketing efforts. Find out which of these work best for YOU:

1. Search Engine Optimization (SEO)
2. Paid Search / Search Engine Marketing (SEM)
3. Public Relations / Press Release Optimization 
4. Email Marketing
5. Social Media
6. Display Advertising
7. Affiliate Marketing

Radio stations pay royalties to songwriters and publishers, but why aren't the performing artists and record companies getting paid too?

Currently, there is not a law that requires radio stations to pay royalties to performing artists (performers) or record label companies (labels). However, a proposed Fair Play Fair Pay Act is underway to seek authorization to require [terrestrial] radio stations [not internet radio stations] to pay royalties to performers and labels. As of now, radio stations are required by law to pay royalties to only songwriters and/or publishers. The controversy in this issue is whether consideration should even be given to pay performers and label companies.

I believe it would only be fair to do so. If performers/labels receive royalties for taped and live performances, television broadcastings, and/or social media forums, then they should also be compensated for [terrestrial] radio play as well.

The fact that radio stations have not been required to pay performers and labels pinpoint another loophole in intellectual property reformation. Because of the rapid evolution of technology, many laws that should regulate intellectual property have not been established yet. With that being said, I see radio stations, both terrestrial and internet radio, as being similar in nature. I see both as similiar to companies like Pandora, Spotify, Songza, etc. Those companies license songs and are required to pay royalties to all the right holders including performers and labels. Likewise, [terrestrial] radio stations should be required to do so too.

According to an article by the Future of Music Coalition, this issue demonstrates a high lack of “…reciprocal rights.” How is it that radio stations have been able to get away with this? I would contribute such absence of regulation to the rapid evolution of intellectual property, but this issue should have been regulated since “years ago.” 

Additionally, it is interesting that when it was determined that internet radio stations were required to pay royalties to performers and labels, it should have also been determined, at that time, for terrestrial  stations as well. I look forward to the verdict of the court’s decision to the proposed Fair Play Fair Pay Act and I will provide a follow up blog on that case. 

True or False: People might be able to use intellectual property without permission and without liability

"Fair Use or Nah?" 

Consider the following cases to give awareness that even if an intellectual property may have a registered right or license, it may not always be protected from people who use it without permission.

TRADEMARK PROTECTED OR FAIR USE?

Kelly-Brown et al v. Winfrey et al

Oprah recently won a lawsuit after being sued for using the phrase “Own Your Power” on the cover of her magazine. The issue was whether the phrase was protected by fair use or not. Courts determined that the trademark owned by Simone Kelly-Brown was not protected. The court’s reasoning was that the phrase lacked the distinction that would cause confusion about Kelly-Brown’s trademark. 

Furthermore, the court determined that Kelly-Brown did not sufficiently prove that there would be any confusion with her trademark and Oprah’s use of the phrase. However, trademarks are put in place so that one’s creative content can be protected and not confused with any other association or classification. But this article seems to go against the main function that trademarks were created to protect. The court’s ruling seems to convey that Oprah’s use of the trademark was fair use partly because it did not cause confusion with an association to Kelly-Brown. But technically, the purpose of a trademark is to protect a mark so that no one else uses it without permission and that should be respected. 

COPYRIGHT INFRINGEMENT OR FAIR USE?
Seltzer v. Green Day

Seltzer, a street art artist, (Street Artist) filed a lawsuit against a music band, Green Day, (The Band) because he found out that the band was using one of his pictures as a backdrop. The issue was whether the band infringed on the copyright of the street artist by using the picture without permission. 

Years prior to the lawsuit, the street artist took a picture of the band and added creative elements in the picture. For a period of time, the band used the picture as a backdrop, until years later, the street artist found out that the picture was being used, with creative modifications, as a backdrop for the band. 

Objectively, it should be fair to say that if the band was the subject of the whole picture that they should be able to freely do as they please with that picture; but, that is not the case according to the street artist.  The street artist claimed that the band's use was copyright infringement. 

Interestingly, the court ruled, [using a four factor test] that the band’s use of the picture was fair use and not copyright infringement. Based on the ruling of this case, the verdict seems to favor a freedom of expression and  First Amendment right; not Seltzer's copyright. I dissent with the court's opinion and the reasoning behind the fair use factor test.

INFRINGEMENT FOR SAMPLING A SERMON OR FAIR USE?
Pastor T.D. Jakes filed a lawsuit against rappers Jeezy and Kendrick Lamar for sampling content from his sermon for their song called Holy Ghost. I think he is correct in doing so because he’s entitled to the same rights that music artists are entitled to for use of their song lyrics. However, critics argue that the pastor might not have a strong case because the use of his sermons might fall under Fair Use.

To say the fair use issue is simple to determine, it is not. Each case of Fair Use is unique and cannot be scrutinized under general regulations. Most cases regarding this issue are difficult. 

Artist Rights: Have you considered all there is to consider?

There are two sides in this industry - an art side and a business side. In order to have a successful career in the music world, the more rights an artist owns, the likelier he/she is going to acquire the most profitability. According to an international Arts Law Center, there are THREE main rights that every artist should own and be aware of:

1         Reproduction Rights,

2         Performance and Communication Rights, and

3         Adaption Rights;

Unfortunately, not all artists are fully aware of all the rights they can possibly own. I was recently reminded of that when I came across an article regarding Music Law Pitfalls . The author explained that nowadays, artists tend to get into contract deals with record companies that give the record company rights to receive a percentage for all aspects of the artist’s earnings. That might sound like a great business move for a record company, but it is definitely not a favorable deal for an artist. Interestingly, back in the day, record companies did not receive a percentage for everything though. Record companies were actually limited to receive profit only for specific things and an artist usually did not share all of his/her rights. 

But why would an artist even share all of his/her profits? I think the thought process to answer that question for some would be to think about it this way, "To be or not to be" (Shakespeare)… either get dropped by the record label who is helping to advance and market your career or remain with a company with whom you would just share a percentage of your profits with…? 

My longing concern is that the business side in this industry is greatly composed of legalities, which are changing daily and conforming to modern times, and that an individual who is misinformed or unaware of certain laws will be at a disadvantage in their career. There are so many more rights that are available  that many artists don't know about. Contrary to the saying, in the music industry, what you don't know WILL hurt you. So my question to the artist would be, “Are you in good hands?” I recommend that an artist be well informed about the business side of the industry or hire someone like an aspiring entertainment attorney like me!! ;-)! ..… ;-)? 

……Anyhow, I highly suggest that every artist read the Music Industry Survival Guide! It’s an online article that provides an awesome summary of the basics about artist rights and guess what? The author does a great job at explaining it in a way that any person without a legal or business background should understand. #WIN

Social Media Privacy: Should you delete your Facebook?

When it comes to social media, privacy is a huge concern - or is it actually not that big of a concern to us? Do we waive our privacy rights when we sign up for social media sites? The answers to these questions are debatable. However, according to an article by Cate Matthews, Facebook has become too invasive in our privacy. Matthews has a huge concern for his privacy rights for social media. 

But is it safe to say that we actually have privacy by engaging in social media? I would say no. I don't think any information that we put on the internet can ever be "private" as some think. I would agree with Matthews to the extent that Facebook may have access to things beyond our knowledge which may cross into our privacy rights; but I also think that it's just norm for the world we live in today. Nothing is really "private" anymore. According to his article, he believes by deleting his Facebook page that he would stir up conversation about Facebook interfering with privacy. 

Matthews' concern stems from reports of the U.S. National Security Agency (NSA) tapping into computers & Facebook accounts and being able to access email accounts & passwords, photographs, emails, etc. Such concern is valid, but let's not pretend that we don't already know that the government can have access to basically anything we put on the internet. 

I hate to discourage such a valid concern, but what is deleting Facebook going to do? The government will still have access to anything we put on the internet. Anyone actively engaging in social media should know that they expect some privacy, but only to a certain degree. I do think, however, that an invasion of our privacy comes into play if government officials are just tapping into our computers for no reason related to safety or investigative measures. But even for investigative purposes, I feel that warrants should be issued. Under those circumstances only, I think that NSA has reason to impose. But, if Matthews is implying that we should delete our Facebook accounts simply because of his knowledge of NSA's capability to use privacy invasive tactics, then he is stirring up a waste less case.