Posts Tagged ‘Copyrights’

• A National Ban on Performance Exclusivity Clauses   • Posting Recordings on Websites • Artist Visa News, Nausea & Updates  • Your Contract Playlist    

Monday, June 24th, 2024

LAW & DISORDER

Performing Arts Division

June 25, 2024  

INSIDE THIS ISSUE:

• A National Ban on Performance Exclusivity Clauses  

• Posting Recordings on Websites

• Artist Visa News, Nausea & Updates 

• Your Contract Playlist    

 

Legal Issue of the Month:

Will a New National Ban on Non-Compete Agreements Also Apply to Performance Exclusivity Clauses? 

 

 

You may recall (or not, that’s ok, too) that in our last newsletter we discussed that on April 23, 2024, the Federal Trade Commission (FTC) issued a nation-wide ruling banning non-compete clauses in all employment contracts, regardless whether an individual is hired as an actual “employee” or as an independent contractor, paid or unpaid, an intern, or a sub-contractor hired to provide service to another party’s client or customer. You can read the announcement HERE.

Further review and analysis have shown that this new ruling, should it go into effect, will also prohibit venues and presenters from including any language in their engagement agreements restricting or prohibiting where an artist can perform before or after an artist’s performance. In other words, should the Grunion Run Performing Arts Center engage the Willy Tugger Jazz Band, they could not prohibit the band from performing two days later at the Annual Grunion Run Mayonnaise Festival where admission is free. Of course, regardless of the future contractual enforceability of a performance exclusivity clause, any artist who actually did this would be hammering a nail deep into the coffin of their touring career. 

Whilst the official effective date has yet to be announced, unless the new regulation is pre-empted by a lawsuit or other judicial action, then the ruling will likely go into effect sometime in Fall 2024.

 

 

 

Dear Law and Disorder:

Actual questions we get asked and the answers people actually don’t want

“With thanks, your friendly, neighbourhood car thief”

Dear Law & Disorder:

I want to post a video on my website that I found on the internet that would be perfect for my new project. I will give full credit to the musician, including the musician’s original link, would this be legal? And can you please specify on what full credit means.

A “copyright” is literally the right to make copies. A copyright “infringement” is when you make a copy of something without the owner’s permission. Almost everything you can find on the internet (photos, images, videos, text, etc.) is someone else’s property. Part of the challenge of understanding digital rights is that the ease with which we can download and copy materials on the internet tends to make us forget that copying any materials without permission is still copyright infringement. Without question, many people post pictures, videos, and other materials and are more than happy to have others repost and share them; but that decision is entirely up to the person who owns the materials. In other words, just because a car is parked on the street, doesn’t mean it’s free for the taking. As for giving “full credit,” that’s like stealing a car, but leaving a thank you note on the owner’s door. It doesn’t make it any less a crime.

If you want to get actual permission to post a video, photograph, or any other copyrighted material on your website, then you need to get permission (aka “a license”) from the owner—which may or may not be the artist. The better option would be for you to post a link to the video rather than post the video itself. In other words, you would be inviting your readers to go to YouTube or the artist’s own website to view the video. This way, the owner can control whether or not they want the video to be shared.

And now, the part you’ve all been waiting for……

Artist Visa News, Nausea

& Updates

 

Most of you know by now that between December 2023 and April 2024, USCIS implemented a number of new filing fees and policies purportedly designed to “maintain adequate service.” Please Note: I did not make that part up. This is direct quote from the preamble to the Final Rule issued by USCIS on January 31, 2024 in which it sets out the goals of its new rules and policies: Not to “improve service” or even “increase processing times,” but to aspire to the lofty and inspired goal of “maintain adequate service.” You can read it for yourself HERE. That’s only slightly less disingenuous than a mobile service touting a 6G upgrade of two tin cans and piece of string.

USCIS, far from its delusions of adequacy, instead has taken an already broken system, smashed it into more pieces, glued it back together with spit and crushed graham crackers, and tossed it into a soggy carboard box of berserk cane toads. After two months in the toad box, here’s where we are:

 

1. Standard Processing Times Are Getting Slower 

Processing times are getting longer, slower, and more intense, which is good news only for those of you who fantasize about USCIS visa examiners. Though we have seen a few instances of standard processed petitions taking 4 months or longer, most seem to be taking 2 – 4 months from the date of filing. Whilst the Vermont Service Center appears to be processing more quickly than the California Service, as USCIS is no longer assigning petitions to service centers based on jurisdiction, there is no way to know where your petition will wind up or exactly how long it will take to be processed.

Premium Processing appears to be taking 7 – 15 business days, with, again, Vermont processing more quickly than California.

2. USCIS Is Losing P Petitions

For those of you unfortunately forced to file multiple P petition to cover large groups, such as four P-1 Petitions to cover an orchestra of 80 musicians, USCIS is splitting them up and sending them to different service centers who adjudicate them at different times. Even when a single P-1 Petition is filed concurrently with a single P-1S Petition or an O-1 Petition is filed with an O-2 Petition, USCIS is splitting them up and sending them to different examiners at different service centers. In the interest of further proving that they aren’t even competent enough to trust with scissors, USCIS is also losing a few along the way. In one particular case, three P-1 Petitions for a large group were filed concurrently with premium processing. USCIS approved 2 and lost 1. Eventually, they found it 30 days after it had been filed, emailed the receipt notice with a thoughtful note saying, “thanks for your patience,” and approved it 2 days later. (Yes, USCIS has to refund the premium processing fee for that one.) So, allow even more time when filing petitions for large groups.

TIP: If you do not receive an I-979 Receipt Notice for a filed petition, then go to your bank and see if USCIS cashed the filing fee check. If so, on the back of the cancelled check will be the receipt number for the petition. You can then use this to deride them when they try to claim it was never filed. 

3. USCIS Is Improperly Rejecting Petitions

There have been numerous instances reported of USCIS rejecting petitions for incorrect filing fees even where the filing fees were correct. This appears to be due to the fact the separating the total filing fee of a petition into multiple different fees based on the business status of the petitioner has not worked as seamlessly as they had hoped. USCIS reports that this is a “training issue,” which presumably means this will improve with rolled newspaper and better treats.

TIP: If you are a non-profit of an employer of 1 – 25 employees, then be sure to address this in your cover letter and explain why you qualify for a reduced fee. Also remember to provide the appropriate documentation of your status.

REMINDER: To qualify as a “small employer” you must have at least 1 full-time employee on a payroll and from whose pay checks taxes are withheld. Otherwise, you are a “small business” or “self-employed” and must pay the maximum filing fees.

4. USCIS Is Issuing Barmier RFEs

USCIS has always been renowned for issuing tragically comical Requests for Evidence (RFEs) when it comes to displays of their obliviousness of anything that occurs on a stage—which, of course, always raises the question of whose idea it was to give them the final say on the casting and booking decisions of major opera companies, theatres, and presenters in the first place. Nonetheless, unattended USCIS Examiners have recently been burrowing into new depths of obtusity in their soiled sand box and issuing more preposterous RFEs. In particular, we have seen a disturbing increase in RFEs for P-1S (Essential Support Staff) Petitions in which they are asking for individual employment contracts for each person with specific employment terms and conditions, more information on why the services provided are necessary for a performance, and why the group can’t just hire US workers to do the same thing. To pluck just a few pearls:

  • What do stage managers do and why are they necessary for a performance?
  • Why can’t an orchestra engage a US-based Orchestra Manager to manage their orchestra when they perform in the US?
  • If the group is performing in New York City, will the group’s lighting designer and stage technicians be providing their services at the same venue at the same time?

Other notable RFE’s we have seen over the last few months include USCIS contending that:

  • An “audience prize” given to an artist at a competition does not count as an “award” because he was selected by the audience and not by experts, critics, or judges in his field.
  • Competitions for “Young Artists” do not count as significant awards or competitions because young artists are only competing against other young artists. For such an award to be “significant”, the competition must include older artists.
  • An opera conductor is not in the same field as an orchestral conductor because one conducts orchestras and one conducts operas, thereby requiring two union consultation letters.
  • An artist performing at a festival cannot be a “lead and starring artist” if there are other artists also performing at the same festival. To be a “lead and starring artist,” the artist must be the only artist performing at the festival.

And my personal favourite: a request for “independent, third-party proof” of the formal name and full street address of Carnegie Hall, as well as proof that, just because the artist has been engaged to perform at Carnegie Hall they will physically be performing on-site.

Fortunately, all of these petitions were ultimately approved, but not without extra expense, lost time, and digging ever deeper into the repository of linguistic condescension in responding to the RFEs—including printing out Google Maps driving directions from the address of the California Service Center to the front door of Carnegie Hall.

TIP: Trying to explain or induce USCIS to appreciate the impact of their ineptness on the Performing Arts will produce only slightly less meaningful results than a zip log bag of toenail clippings. Rather, work around them. Know that they are extraordinarily paranoid, as well as painfully literal. Never explain or make them think. Give them what they want to know, regardless of how stupid or rudimentary it may seem, and in the simplest of terms possible. If what they want doesn’t exist, draft simple, specific documents just for USCIS that addresses the specific things they want to know.

 

Want To Listen To More About Contracts?

 

My friend and longtime client, Laura Colby, a performing arts manager based in New York City, hosts a podcast entitled The Middle Woman. In The Middle Woman, Laura discusses best practices for managing, touring, and presenting the performing arts from the lens of a working artist and shares her collected learnings with the new generation of performing arts professionals.

She recently invited me to join her in a discussion about contracts in the performing arts.

Here are the links to access the episode on Spotify, Amazon Music, Audible, and Apple Podcast.

Whilst it may or may not be the best thing to listen to before going to bed, it was a great discussion.

 

 

 

Deep Thoughts

 

“Remember, when you are dead, you do not know you are dead. It is only painful for others. The same applies when you are stupid.”

― Ricky Gervais

 

Send Us Your Questions! 

Let us know what you’d like to hear more about.
Send us an email, post on Facebook, mail us a letter, dispatch a messenger, raise a smoke signal, reach out telepathically, or use whatever method works for you.

OFFICIAL LEGALESE:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a threatening email, filing a lawsuit, or basically doing anything that may in any way rely upon an assumption that we know what we are talking about or one size fits all!

Tags:, , , , , , ,
Posted in Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Presenters, Uncategorized, Visas | Comments Closed

Don’t Toss A Banana To A Monkey If You Don’t Want The Monkey To Eat It

Wednesday, June 15th, 2016

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

So, it seems we have ourselves a bit of questionable “inspiration” on our hands. The inventive work of one of our roster artists uses overhead projectors, multiple screens, puppets, actors, live feed cameras, multi-channel sound design, and a live music ensemble, to create shows. And, this technique has been popping up in other artists’ shows after the copy-cat artists have either attended one of our group’s shows or participated in one of their workshops. One person in particular attended a workshop and has now created her own show where she admits that she learned her techniques at one of our workshops. How do we prevent this kind of theft of intellectual property? Do they have any recourse to put a stop to (at a minimum) what seems to be straight-up plagiarism?

So if I understand this correctly, the group is holding workshops where they teach others their techniques, but want to make sure that those techniques are never used. They have two options: (1) make everyone who attends one of their workshops sign a contract that they will immediately forget everything they are taught; or (2) if they don’t want people copying their techniques, stop teaching workshops on how to copy their techniques! That’s like tossing a banana into a cage full of monkeys and expecting them not to eat it!

While copyright infringement is illegal, plagiarism is not. Plagiarism is an academic concept most of us are taught in school and is all about citing sources and giving credit. Plagiarism is not about copying; its about giving attribution to your sources. While similar, copyright infringement means that someone has copied an artist’s specific words, images, pictures, music, or other creative material without permission to do so. (Merely giving credit or attribution is insufficient.) The important concept here is that it’s the “material” being copied, and not the ideas or concepts behind the material.

Copyright infringement requires direct copying of actual scripts, images, pictures, music, etc. Copyright does not protect or prohibit the copying of ideas or concepts. Merely being inspired by another’s work or employing similar techniques and styles is not direct copying. In fact, the copyright laws are designed to discourage copying, but encourage imitation. So, for example, if I see a dance group performing to the music of Phillip Glass while dressed as pigeons, I can create the exact same routine for my own company—provided I do not copy the specific choreography or costumes of the other group. I would have to design my own pigeon costume (and, of course, get my own dramatic license from Mr. Glass’s publisher.) Similarly, if I see a show using overhead projectors, multiple screens, puppets, actors, live feed cameras, multi-channel sound design, and a live music ensemble, I can use the except same concepts and techniques to create my own shows—especially if I was taught how to do so by the original company. I just cannot copy the specific images, sounds, designs, or scripts of the original company. In short, your group cannot be the only one on in the world the uses overhead projectors, multiple screens, puppets, actors, live feed cameras, multi-channel sound design, and a live music ensemble. Your group can be the best. It can be the first. It can be the originator. But it cannot be the “only.”

I would certainly recommend that the group register copyrights for both its scripts and videos of its productions as that would make them easier to protect in the event of an instance of direct copying. That and stop encouraging imitating by teaching others how to imitate!

_________________________________________________________________

For additional information and resources on this and other GG_logo_for-facebooklegal, project management, and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.com

All questions on any topic related to legal, management, and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

 

 

Tags:, , , , , , ,
Posted in Copyrights, Law and Disorder: Performing Arts Division, Licensing | Comments Closed

How Is Copyright Infringement Like An Ugly Car?

Thursday, November 20th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

What rights does a translator have? I translated a non-English script into English. All of the prior translations were very bad, which is why I did my own.  Everyone agrees mine is the best, even the original author. However, now that I am getting offers to produce my English version, the author and his publisher are insisting that, if I want to proceed, then they will own the translation and just pay me royalties for English productions using my translation. That doesn’t seem fair. The translation is all my work. I thought translators own the copyrights in their translations, so, don’t I already own it?

Robyn always tells me I never met an analogy I didn’t like, and I feel one coming on now.

Let’s assume I own a car which drives well, but is a hideous colour of besmirched baby blue (which, as it happens, was, in fact, the hideous colour of the first car I ever owned—a ’72 Buick Skylark which had belong to my grandfather, but I digress). You believe that you can re-paint my car and make it look like a Ferrari and offer to do so. Assuming I accept your offer, just because you paint my car doesn’t mean you now own the car or have any rights to drive it. I might owe you for your time and materials, but even if you make the car look better, the car itself still belongs to me. More importantly, let’s assume that I decline your offer, but you break into my garage and paint my car anyway. Even if you were somehow successful in turning my Buick into a Ferrari, you would still not have any ownership rights or control. You’d also be guilty of trespassing. (Incidentally, my mother did this very thing, erroneously believing that I would be touched and delighted with her thoughtfulness in having my car repainted, without my knowledge, from besmirched baby blue to her choice of vibrant puce. I was not.)

A copyright is like a car. The owner of a copyright has the exclusive right to determine who uses it and how—including the rights to edit it, make copies of it, perform it, record it, re-arrange it, re-orchestrate it, translate it, or create derivative works from it. A “derivative” work is anything that “derives” from the original work, such as a play or novel made into a film, a composition used to create a toy music box, etc. In short, there is nothing you can do without the owner’s permission and, in exchange for such permission, the owner can set any terms, reasonable or unreasonable, that the owner wants—including the right to refuse permission entirely. (Ok, there are one two minor exceptions, but they don’t apply to your question.)

If you want to translate someone else’s work, you must have the original author’s permission. If you don’t like the terms of the author’s permission, don’t do the translation and move on to another project. You are correct that, if translations contain a sufficient amount of creativity (as opposed to, say, a Google translation), then the translation is, itself, subject to its own copyright owned by the translator. However—and this is a BIG “however”—if you didn’t have the original author’s permission to make the translation in the first place, then your copyright is meaningless. It doesn’t matter how artistically nuanced, sensitive, or authentic it may be. As an unauthorized translation, any use of the translation would constitute an infringement of the original author’s copyright. Owning the copyright in the translation merely gives you the right to stop others, including the original author, from using it, but it doesn’t give you any right to use it without the original author’s permission.

Learn from my Mother—step away from the car!

_________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

Tags:, , , , , , , , ,
Posted in Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights, Publishing | Comments Closed

Licensing Video For A Tribute Show

Thursday, June 5th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

We are in production of a new “Tribute” show with a video component.  We are grappling with what type of media is public domain or where public domain photos or video can be found.  None of the video production companies seem to have a definitive answer.  I have been searching for pertinent federal statute that address this issue.  Any thoughts? 

There’s an old joke where a man encounters another man frantically searching for something in the middle of the street. The first man asks: “What are you looking for?” The second man replies: “My keys. I lost them in the dark alley over there.” “Then why are you looking for them out in the street?” “Because the light is better out here!” Ba da boom.

Like the man in the street, you’re looking for the right thing, but in the wrong place. There is no federal statute that addresses your issue…at least, not directly. If you’re producing a “tribute” show with a video component, then any copyrighted material you want to include in your video will need to be licensed. Any material that is not protected by copyright is in the public domain and is free to use. The question you need to ask then is: how do you tell if material is still protected by copyright? The federal copyright statute will give you a formula, but not the answer. The answer depends on when the copyrighted material was first published. Most often, copyright lasts for the life of the owner plus 70 years. But who is the owner?

The challenge with videos is that you are often dealing with multiple copyrights with multiple owners. Let’s say, for example, that you want to include a video of the original artist (since this is a “tribute” show) performing at a concert recorded in the 1960s. There is a copyright in the video itself as well as a copyright in the music being performed on the video. So, even if you were to determine that the video is in the public domain, the music being performed may still be protected by copyright—or vice versa. We once had an orchestra contact us about creating a DVD to celebrate their 50th anniversary using old video clips from past concerts. Not only did we (well, to be fair, Robyn!) have to obtain licenses from publishers of certain contemporary works (as well as arrangements of older works), but we needed to obtain licenses from some of the original videographers who still owned the rights to the video footage. (Side note: ALWAYS take the time to get a written license or assignment from anyone whom you hire to photograph or videotape your or your performance—even volunteers!)

Photographs are similar. In every photograph are two sets of rights: the rights to the photograph itself (ie: the negative) and the person being photographed. The photograph itself may be owned by the photographer, but the photographer may or may not own or control the rights to the image or person in the photograph. While a person does not have a “copyright” in his or her own image, they do own rights of publicity, rights of endorsement, etc. So, for example, if you wanted to use a photograph of the famous artist you are paying “tribute” to, you would need to determine whether or not the photograph itself was in the public domain and whether or not you required any publicity or endorsement rights to use the image of the artist. (To make matters even worse, publicity and endorsement rights are controlled by state, not federal law, and can vary from state to state.)

Determining whether or not a photograph is the public domain is just like determining whether or not a video is in the public domain: when was it made? Who made it? Are they dead or alive? Even if the photograph or video is in the public domain, you still need to do a separate analysis of the contents or images on the photograph or video.

While we’re on the topic of “tribute” shows, its also worth mentioning that even if you are lucky enough to find all the videos and photographs you want, as well as the contents thereof, in the public domain, you still need to be wary of using the name and image of the original artist in the marketing and publicity materials of your tribute show. Things like names and even visual elements such as distinctive costumes or a physical characteristic of the original artist can trigger trademark issues that are entirely different from copyright and other rights. The good news is that with enough advance planning and thoughtful analysis, its entirely possible to create the type of video component you want. Many artists and producers successfully do this all the time, often with the blessing of the original artist.

__________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

 

 

Tags:, , , , , , , , , , , , , , , , , , , , ,
Posted in Artist Management, Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing, Trademarks | Comments Closed

Dad, May I Borrow the Car?

Wednesday, February 13th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder: May we borrow music for an orchestral performance from another organization that purchased this music, but is currently not using it?

When you write that the other organization “purchased this music”, do you mean that they actually purchased all performance rights to the music or merely purchased the score and parts? Did they actually purchase the score and parts or merely rent them?

When it comes to copyrights and performance rights, “physical” possession of an artistic work does not inherently include any rights to the work other than the right to own it and possess it. For example, when you purchase a copy of Harry Potter, you get the right to read it, enjoy it, and place it on your bookshelf. If you like, you can even lend it to a friend or sell your used copy at a flea market. However, purchasing a copy of the book does not give you the right to perform it, interpret it dramatically, make a movie out it, copy and re-print excerpts, or do anything other than enjoy it. Similarly, when you purchase a painting from a gallery, you are purchasing the right to hang it on your wall and enjoy it. Like a book, you can also lend it to a friend or museum, or even re-sell it—but you do not have the right to make copies of it, alter it, post images on your website, use it as your logo, or do anything other than look at it. Those rights must be obtained separately.

Purchasing music works much the same way. The physical ownership of sheet music does not also give you the rights to perform it. Those rights must be obtained separately from the composer or publisher—or, if the composer is a member of a performing rights society (ASCAP, BMI, or SESAC) then you can obtain licenses through the society. So, in your scenario, assuming the other organization purchased the score and parts, then they have the right to loan you the music, but if you want to perform it, then you will need to obtain your own performance rights and licenses. Assuming they only rented the score and parts, then they don’t have the right to loan it to you in the first place. That would be like an illegal sub-let.

Borrowing music is like borrowing a car. First, you have to make sure that the person loaning you the car actually has the right to loan it to you in the first place. (Just because they have the keys, doesn’t mean they own the car.) Second, even if you are allowed to borrow the car, if you want to drive it, you’ll still have to pay for your own gas.

_________________________________________________________________

For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

Tags:, , , , , , , , , , , , , , , , , , ,
Posted in Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing | Comments Closed

How Do I Protect My Personal Assets From Claims of Copyright Infringement?

Wednesday, June 13th, 2012

By Brian Taylor Goldstein

Dear FTM Arts Law:

Could owning copyrights individually (as opposed to being owned by a corporate entity) ever be a personal liability?  I understand that if copyrights are held in the name of a S-corp, C-corp, or possibly LLC, the corporate veil would shield my personal assets.

There is no liability in “owning” a copyright—unless you’ve written something really horrible and would rather not be credited. However, there can be considerable personal liability in stealing (or what attorneys call “infringing”) someone else’s copyright.

Let’s assume, for the sake of argument, that you are a composer and another composer claims that portions of your famous zither concerto contains unlicensed portions of the other composer’s music. If you own the copyright in your zither concerto personally, then you can be personally liable. But what if you had transferred or assigned the copyright to your publishing company and your publishing company is a Limited Liability Company (LLC)? Then both you and your company can be sued! In other words, a corporate veil does not protect you or your personal assets from liability for copyright infringement!

In most cases, you are correct that when your form a valid corporate entity (C-corp, S-corp, or LLC), then a “corporate veil” descends between the entity and the owners (even if there is only one owner) and the owners are not personally responsible or liable for the debts of the corporate entity. If, for example, your corporate entity enters into a contract to pay for services, and your corporate entity breaches the contract and refuses to pay, then only the corporate entity is liable, not you personally. However, this “corporate veil” only protects you from liability for debts, bad business deals, or contract breaches. It does not protect you from liability from what are called “torts.”

A “tort” is any thing other than a breach of contract which causes damages to another person and includes such things as fraud, negligence, assault, battery, defamation, and….copyright infringement. So, if the president of a corporate entity commits fraud, then both the corporate entity can be liable as well as the person who “personally” committed the fraud. Or, if a truck driver runs a red light and causes an accident, then both the truck driver can be sued, as well as the company he or she works for. It is the same with copyright infringement.

If you are accused of using unlicensed material in your zither concerto, it doesn’t matter who holds or owns the copyright. If it is ultimately determined that you used someone else’s copyrighted materials when creating the work in the first place, then you are personally liable. And it gets worse. Through a legal theory called “vicarious liability”, the musicians who perform you work could be liable, the agent or manager who promoted it could be liable, even the venue where it is performed could be liable.

In the end, the smartest way to protect your personal assets from potential claims of copyright infringement is either by using only original works or by ensuring that you have all of the proper licenses and permissions in the first place. Also, in order to protect yourself from frivolous lawsuits and false claims of infringement, register your copyrights with the US Copyright and Trademark Office.

__________________________________________________________________

For additional information and resources on this and other legal and business issues for the performing arts, visit ftmartslaw-pc.com.

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. FTM Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

Tags:, , , , , , , , , , , , , , , , , , ,
Posted in Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Liability, Licensing, Limited Liability Companies | Comments Closed

Posting Musical Performances on YouTube

Wednesday, April 4th, 2012

By Robyn Guilliams

Dear Law and Disorder,

What are the copyright issues in posting a performance of a piece of music on YouTube for global streaming?  And, since people can easily download YouTube content, what are the implications for the person who’s posted it, or the downloaders for that matter?

Before answering your question, I want to clarify that there are two separate copyrights in a videotape of a musical performance – the copyright in the music contained in the video, and the copyright in the video itself.  The copyright is usually owned by the creator of a work.  In the case of the musical composition, the copyright would be owned by the composer (or perhaps the composer’s publisher, if he or she has one.)  In the case of the video, the owner of the copyright would be whoever created the video (and NOT the individual performers – which is a common misconception!)

Now, on to your question…  The answer depends on who owns the copyrights to the video, and the underlying music in the video.  If you make a video of yourself performing your own music, and you post that video on YouTube, there are no copyright issues.  Because you own the music being performed, AND you own the video, you have the right to post that video on YouTube or anywhere else on the Internet.

However, the answer changes if you don’t own the music.  If the musical copyright is owned by someone else, you would need that person’s permission to perform the music (i.e., a performance license for the music), to videotape the performance (a synchronization license), AND to broadcast that video via the Internet (a performance license for the video).  Of course, it’s not necessary to have three separate documents, but you would want to be sure you have all of the permissions you need in one license!

The answer also depends on who owns the videotape of the performance.  As noted above, the owner of a video usually will be the person who creates the video.  So, if you perform your own music, but someone else records that performance, then that person will own the video, and you would need that person’s permission to post the video on YouTube.

Downloads implicate yet another potential license requirement – a distribution license!  If you don’t have a right to distribute the video – or the music contained in the video – both you and the illegal downloader could be liable to the copyright holders.

The moral here is that, before posting any audio or video recording on the Internet, be sure you have all of the necessary permissions – preferably in writing!

__________________________________________________________________________

For additional information and resources on this and other legal and business issues for the performing arts, visit ftmartslaw-pc.com.

To ask your own question, write to lawanddisorder@musicalamerica.org.

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. FTM Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

Tags:, , , , , , , ,
Posted in Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Recordings, Uncategorized | Comments Closed