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. 

Interview: Effectively Negotiating a Deal

I had the opportunity to interview an upcoming director and engineer, named BeatsMaster. With more than 5 years of experience in the entertainment industry, BeatsMaster is no rookie to the game. His background in music includes playing the bass guitar, the piano, the drums, the saxophone, making beats, studio engineering, and singing. All his musical skills have equipped him to pursue a career in directing and producing music. As a result, he recently opened his own production company and I interviewed him about his negotiation process in sealing the deal to open and operate his business. The three different negotiation techniques we discussed were Interests v. Positions, Separating the People from the Problem, and Mutual Benefit.

Negotiation Technique: Keeping an Eye on the Prize: Interests v. Positions

During the interview, I asked BeatsMaster about his negotiation techniques. According to BeatsMaster, negotiations have a lot to do with securing successful business deals in the entertainment industry. He stated that sometimes, music artists or producers go into a business meeting without being thoroughly prepared to make an effective deal. He said that that is the downfall for many unsuccessful negotiations. In response, I asked him how would he suggest that someone prepare for a negotiation. In response, BeatsMaster stated that the key is to think like the opponent; doing so forces him to think about his opponent’s position on where he/she stands in the negotiation process and it also helps him to have a better understanding of the opponent’s interests. In addition, he stated that being prepared in that way keeps him focused on really understanding what is being negotiated. I stated that he is absolutely correct and that he is focusing on his opponent’s interests. In negotiations, in order to solve the problems, both parties should focus on their opponent’s interests and not their positions.

Negotiation Technique: Re-focusing: Separating the People from the Problem

I continued the interview by asking BeatsMaster how he would deal with difficult opponents and how he would separate the people from the problem. In response, BeatsMaster stated, as stated above, that he tries to remain focused on the problem at all times. When negotiating the deal for his new company, he stated that he started to become frustrated when his opponent started to become difficult during the negotiation process. As a result, the negotiation took a halt and did not go anywhere. When BeatsMaster realized that his frustration prevented him from making effective decisions, he remembered to go back to focusing on the problem at hand. In that way, he removed his attitude, along with his opponent’s attitude from the equation, and proceeded to focus on the problem instead.  

Negotiation Technique: Win-Win Deal: Mutual Benefit
I concluded the interview by asking BeatsMaster how he ended up reaching a final agreement and obtaining ownership of his own production company. In response, BeatsMaster stated that he and his opponent ultimately had to focus on their interests and decide on a deal that would work out for all parties involved. Furthermore, I asked whether a mutual benefit was reached. He stated that he honestly did not feel like he got the best out of the negotiation in the final agreement. BeatsMaster felt as if he had no choice but to settle on some issues. He stated that although he was trying to reach a mutual benefit, his opponent was not so willing to either agree or negotiate on certain issues. But on a positive note, BeatsMaster left the negotiation knowing that the deal was good enough for him to still start and operate his own company and run a successful it nonetheless. As a lesson learned, BeatsMaster stated that being unable to gain a better benefit deal in his favor impacted the way he would conduct business negotiations in the future. He stated that he will always try to make sure that both parties leave the negotiation with mutual benefits they are both content with – he added that such contentment paves the foundation for future business dealings with each other.

How far would you go to save your reputation?

Defamation is the ruining of one’s reputation by false statements or accusations. According to an article by Hollywood Reporter, Andrew Greene sued Paramount Pictures, along with other co-defendants for the release of the movie The Wolf of Wall Street. Greene accused Paramount Pictures of depicting him in a negative light in the film.

The movie was inspired and based on the real-life fraud and corruption activities in the stock market on Wall Street in the 1990s. According to Greene, the movie "contains various scenes wherein Mr. Greene's character is portrayed as a criminal, drug user, degenerate, depraved, and/or devoid of any morality or ethics." However, Paramount Pictures moved to dismiss the allegations based on grounds that the film had nothing to do with Greene’s character.

           

It is hard to believe that Greene really felt that the movie defamed his named. As a matter of fact, the main character, Jordan Belfort, whom the movie was inspired by, stated that although the movie’s depiction of him was accurate, he was actually worse than the movie showed. In light of this statement, I am not convinced that Greene’s reputation was ruined enough to file this lawsuit.

Whether Greene felt that his character was portrayed in a negative light, what was his point in pursuing a lawsuit against this movie? In doing so, I believe he painted an even bigger and worse picture of himself. Instead of filing a defamation lawsuit, which is usually done to give someone the opportunity to defend him or herself against false statements, Greene set a disadvantage for himself. What opportunity would filing this suit give to Greene? I hope Paramount Pictures’ motion to dismiss is granted.

Blog Interview with Intellectual Property Attorney, Heather B. Vargas

I got the opportunity to interview Heather B. Vargas (Heather) about her experiences with professional negotiations. She is a professional and board certified intellectual property attorney. She actively works in the entertainment and media law capacity in addition to other areas of law.

In entertainment law, it is important to hire an attorney who is competent in negotiating and deal-making. Below is the interview I conducted with Heather, which reflects her experiences about negotiations.

Q: How do you separate the people from the problem when you are negotiating? 

A: This is not an issue after you have been practicing law for a few years. More often than not, attorneys are very friendly & are just trying to work out what is best for their client. The key is to analyze the problem without emotion before you have the first conversation with the other side & before you have a chance to form an opinion of your opposing counsel. Thinking your case through before communicating with the other side allows you to see where you have leverage, if any, and capitalize on it. It also allows you to set reasonable expectations for your client. 

For example, if your client has been accused of infringement, and is actually infringing, then your leverage is that you can get your client to agree to stop infringing without the plaintiff having to spend the time and money to file a lawsuit.  Your client should be happy with that (not having to pay money) if you have set their expectations properly.

Q: What tips do you have for new negotiators who are trying to separate the people from the problem when they are negotiating?

A: Don't adopt your client's emotion.  Your client is living the drama of whatever is happening.  You should be sympathetic, but that should not carry over to your communications with your opposing counsel.  You and the other lawyer have been hired to solve the problem, and you are able to do so because you do not have the frontline emotions that your clients have. 

Saying "I don't know" is not only okay; it is sometimes your best answer.  It is better to be sure of what you are saying then to have to risk your credibility by retracting something later.  Also, every attorney should respect saying that you have to go back to your client for authority.

  

Q: How do you negotiate with an objective criteria already set in place?

A:  Be creative. A lot of negotiations come down to money, but sometimes there is something that you can give that is worth more to the other side than it is to your client.  Remember, the other side's product or service costs them a lot less than it would cost for your client to buy it on the open market, and vice versa so that is a good place to look for potential deal points.

Q: Can you give me an example of how you worked toward mutual benefit when you were negotiating a deal?

A: Obviously, everything I do for my clients is confidential, but I can tell you that we were able to strike a deal on a trademark matter once with my client (the owner/prior user of the mark) getting night club tickets in lieu of some of the money they were seeking.  It didn't cost the opposing party (the owner of the night club) anything and my client got something they wanted.

Interviewee Contact:

Heather Bond Vargas

Florida Bar No. 230900

Cobb Cole Center 149 South Ridgewood Avenue Suite 700

Daytona Beach, FL 32114

(D) 386-323-9220  | (F) 386-944-7964

Website | Bio | vCard

EXPOSED! Online Counterfeit Stores

Many times, when shopping online for popular name brand clothes like Louis Vuitton, Gucci, Dolce & Gabana, etc, people seek to find the best and authentic deals of the brand. Sometimes, it’s easier than not to decipher whether an online site is just an imitator or not, but in 2014, it is getting easier for imitators to appear just as authentic. According to an article on Intellectual Property Today, the brand name True Religion was awarded over eight hundred million dollars against imitation retailer sellers from China. This article was interesting because it made me think of two things: 1) the extremity of retail counterfeit and 2) whether an ordinary consumer would be allowed to file against them. These two points shed light on the problems that the internet imposes on registered patents and registered trademarks.

The expansion of the Internet has proven to be very beneficial in today’s society but it has also opened its shared of disadvantages as well. Online shopping is done more frequently now than it has ever been done before and as a result, many retail companies have online stores. However, retail imitators or counterfeiters are also sneaking up behind these companies and creating fake online stores. The problem this creates is that the revenue of sales is being taken away from the real company and their customers are being ripped off by the imitators.

In the True Religion case, true religion won against the counterfeit companies operating out of China. But, what happened to all the customers who got ripped off? Would it be fair to prohibit them to seek money from the counterfeit companies who ripped them just because True Religion sued them already? In many cases, a consumer would be able to file a civil suit against these counterfeit companies on grounds of breach of contract, etc.  Nonetheless, retail counterfeit is a problem that  needs to be dealt with. But how can it be stopped? To me, it only seems like it can be dealt with case by case. It just seems to large of an issue to track down every company on the internet and make sure that every site conducting business under its name is not a counterfeit site.