“Fair Use” and other legal mumbo jumbo

       Sometimes the minutiae of the music industry can be overwhelming. In my interview with Entertainment Attorney Ken Franklin, we discuss his entry into Entertainment Law and common issues and misconceptions throughout the industry. He also gives us some great advice on finding legal counsel, avoiding infringement, contracts and staying informed.

Claudia MB: What prompted you to enter the legal field and why Entertainment?

Ken Franklin:

“I originally was interested in working in a legal or business capacity within a high tech company.  I have a science background (Georgia Tech, Physics, 2004) and had been very attracted to the technology commercialization process.  That led me to Emory’s JD/MBA program, which I completed in 2009.  During that program, I developed interests in a variety of other areas, and entertainment was in my “top 3” due to a life-long music hobby.  I was able to intern during law school for a few entertainment attorneys, and the interest solidified.  I find that entertainment law, particular in music (which is my main focus), is a fascinating “behind the scenes” type of field, where one can witness and engage in the immense work and legal issues that are the backbone of such an important (and fun) element of our society and culture.” 

CMB:  Seeking legal counsel is always a great idea when signing anything while working in the industry. Oftentimes when a business or artist is first starting out, it does not always fit into their initial budget. Can you tell us more about your work with Georgia Lawyers for the Arts and the services they provide?

KF: “I was a volunteer intern at Georgia Lawyers for the Arts for a semester.  It is a fantastic organization run by attorneys Lisa Moore (the Director, and Principal of The Moore Firm) and Elizabeth Wheeler.  GLA helps place entertainment clients with attorneys who can assist with a particular entertainment legal issue, and will sometimes take a client in-house.  If the client falls below a certain income threshold, GLA will try to place that client with an attorney who will be engaged on a pro-bono basis for a single matter.  During my internship, I assisted with this placement process, and also conducted legal research on certain music rights issues related to in-house matters.”

CMB: I am sure practicing in Atlanta, such a strong music city, you deal with many recording artists. Can you give our readers some examples of the most common types of cases (music or otherwise) to come across your desk?

KF: “I spend the majority of my time assisting another local firm (The Law Offices of Sandra L. Brown, P.C.) that represents recording artists and producers (including A-list talent), managers, songwriters, and independent record labels, production companies, and music publishers.  Most of my work involves drafting, reviewing and negotiating contracts that underlie the work these clients conduct in the music industry.  I am ofteninvolved with short- and long-form record deals, producer agreements, publishing agreements and management agreements.”

 CMB:  Intellectual Property issues involving copyright and trademark, such as infringement or what is considered fair use, are very regular occurrences throughout the industry. Would you agree that obtaining copyright reports, title reports and the use of disclaimers could help avoid possible infringement?  Can you give us a few examples of the most common situations that you have seen?

KF: “’Fair use’ is a complicated, fact-based and constantly evolving legal doctrine, so it is difficult and risky to assume you will be able to rely on it as an adequate defense if you are later sued.  As a general matter, in music/entertainment, you will almost always need permission to use/copy/display/distribute/etc. someone else’s work and trademarks.  If you are collaborating with others, having contracts in place that specify who owns the work/intellectual property is important and can help avoid disputes down the road.”

“Some examples of infringement cases I have seen:  copyright infringement claims, where an artist was accused of incorporating a previously-created composition (to which the artist allegedly had access) into that artist’s song; trademark and related issues where an artist’s name and image were used, without permission, by a business in its marketing materials.”

CMB: Contracts are a huge part of an artist’s career as well as for someone starting a business in Entertainment such as consulting. Can you give us some tips on some of the most common pitfalls that artists and small business owners fall into when reading and/or negotiating a contract? How can they be avoided?

KF: “Entertainment contracts, generally, involve very complex legal issues and are drafted with complicated language.  To be honest, the most common pitfalls I’ve seen involve situations where an artist signed a recording agreement or management agreement he/she thought they understood, without having it reviewed by an attorney with experience with those types of deals.  By skipping this critical step, it is very easy to give away rights, owe lots of money, and/or find yourself stuck in a long-term contract lasting several years.  I highly suggest always having a lawyer review a contract you are being asked to sign, and that lawyer should be an entertainment attorney with experience in the business.  One should at least consult with an attorney even if paying for one might be an issue, because for some types of deals, it is customary for one side to pay the other’s legal fees.  If a contract has already been signed, it is important to know what is in it to understand your rights and avoid breaches.  Hiring an attorney to review and provide a summary is good idea.”

“Further, the more you educate yourself about the business, the better.  There are several good books written for non-lawyers that explain music law concepts (like Don Passman’s All You Need To Know About The Music Business).  Books should not be a substitutefor an attorney when you are negotiating a contract, but being more informed about the issues and how these contracts generally work is always a good thing.”

CMB: Artist management agreements, producer agreements, licensing agreements, recording contracts, talent agreements, songwriter agreements, Artist/venue agreements, consulting agreements; there are so many different types of agreements that can be made over the course of a career in the entertainment industry. Once you have signed something, you often feel as if there is no way out. Is it possible to get out of any of these agreements without ruining a relationship and do you have any suggestions as to how to avoid accidental breaches of contract?

KF: “There are certainly instances when the parties to a contract decide they want to amicably go their separate ways, and they negotiate a release or some form of separation agreement.  Whether a relationship is “ruined” really would depend on the specific parties involved, the circumstances surrounding the relationship, and the type of contract it is.  Parties can always separate peacefully if they choose.  As for avoiding accidental breaches – it is important to understand what is in the contract – and that is where the attorney can help.  Also, if a contract is being negotiated, the attorney should consider incorporating a “cure” provision that allows parties a certain time period to fix an accidental breach after being notified of that breach.”

   

CMB: If the consequences of a breach of contract are not stated explicitly within the terms of an agreement what are the possible legal ramifications of abandoning an agreement?

KF: “Possible ramifications:  You get sued, you have to spend a lot of money to defend the lawsuit, you lose, and then you are forced by the court to comply with the contract and/or become responsible for paying heavy damages and the other side’s very high attorney’s fees.”

CMB: As an artist manager or an entertainment business consultant for instance, you are getting paid to give advice as well as guide someone else’s career. One possible way to protect yourself would be to obtain errors & omissions insurance. What are some other possible liabilities, such as misrepresentation, that they may face and how can they be prevented them from occurring?

KF: “ Breach of contract.  This can be avoided by having the contract reviewed by an entertainment attorney and understanding what it is you have to do and when per the terms of the contract. “

After speaking with Attorney Franklin, there are some great takeaways that we can all use to solidify our choices throughout the industry. 1. Don’t go it alone. Seeking legal counsel when signing any paperwork is the best way to ensure that you understand what you are singing as well as ensuring that a contract contains all of the things that you need in order to make a partnership mutually beneficial. 2. Although lawyers aren’t cheap, there is a way for artists on a budget to receive the assistance they need. 3. Don’t underestimate the seriousness of a contract; however, know that there are ways to get out of one without injuring your business. 4. When in doubt, get it in writing. You need permission to use anything that is not our original work. No matter how small the sample, or how seemingly common the image, you must always go to the original owner and receive written permission to use any outside works.

Kenneth Franklin is an Entertainment Attorney based in Atlanta, GA. He can be reached at:

191 Peachtree Street, Suite 3300

Atlanta, GA 30309

(404) 877-8246

(404) 963-7062

ken@franklinlawgroup.net

Hip-Hop vs. Blues, User vs. Provider, “Termageddon” * and other Copyright Issues Plaguing the World Today

“ It’s mine! Just admit it!”

In Gardner’s article (2011) about the case between Kanye West, Jay-Z and Syl Johnson, it’s all about the loopholes in the legal system regarding copyright.   Mr. Johnson created a sound recording of his work Different Strokes in 1972.  A sample of that song is supposedly included within the Watch the Throne album collaboration between Kanye West and Jay-Z. Johnson claims that he did not,at any time, give written permission for either artist to use any portion of his work on any project. He says that although it was requested for one of West’s earlier projects, that permission was not granted.  According to Gardner (2011), copyright law did not include sound recordings until after 1972; therefore Johnson’s work would not be protected under that law. This is a very tricky situation because Different Strokes is publicly known as Johnson’s work. Whether or not it was officially registered, shouldn’t he be given some legal protection? I think that this is a very valid argument since the author of the work is still alive and able to prove the similarities between the two projects. Whether they admit to using the sample or not, regardless of the projects, Johnson should at the very least be credited. But I suppose that is for the judge to decide.

Ignorance is Bliss

If one person infringes on a copyright by uploading unauthorized work to a website, is the provider liable? The Ninth Circuit Court of Appeals says, “yes”. Seems very cut and dry, no? Except when you read through the Digital Millennium Copyright Act. In his article about the lawsuit between Universal Music Group and the website Veoh, Gardner (2011) explains the minutiae of the act. Veoh, a video sharing site, falls under the safe harbor clauses of the act, which only makes them liable if they are aware of infringing items on their site. The clause also requires the owner of the work to notify the provider of the crime and require them to remove it before the site can become liable for knowledgeable infringement. (Gardner, 2011) These provisions put the responsibility solely on the part of the owner of the work to monitor their creations on the Internet rather than have a provider screen and research every item uploaded to their site. This court ruling is huge. Because of the safe harbor, the court rules that Veoh is in the clear and UMG doesn’t have a foot to stand on. They based their decision on the precedent set by the Sony Corp. of America v. Universal City Studios case, “which helped legitimize the VCR, and finds that so long as the product was ‘capable of substantial non-infringing uses’, the Supreme Court ‘refused to impute knowledge of infringement.’” (Gardner, 2011).  I believe that it is both parties’ responsibility to regulate work that is protected by copyright.  Providers could set up a screening process including a 24-hour wait time for approval before allowing a user's item to be visible on their site. The battle wages on as an appeal on a similar case is expected in the near future.

The end is near….

In the case between EMI and the J. Fred Coots estate, the issue is as iffy as a one-time use disposable camera. Coots, co-writer of the holiday classic Santa Claus is Coming To Town, motioned to terminate his publishing rights with publisher Leo Feist in 1981. After a couple of transfers of ownership, EMI became owners of Feist's company. After Coots’ death, his estate tried to reinstate the termination in 2004. Apparently songwriters have a one-time right to terminate a work only after it has been published for 35 years (Gardner, 2011), which the courts ruled, Coots had already done. His estate wants to deem that 1981 termination as “invalid and unenforceable and that the 2004 notice is in force. The plaintiff is also seeking compensatory damages.” In my opinion, this lawsuit is ridiculous. The estate is just looking to get money that they are not entitled to. If Coots motioned to terminate in writing back in 1981, then he exercised his right. I can see how the family would like to have a copy of a valid notice for their records; however, asking for compensation for everything that has occurred between 1981 and now is ludicrous.

References

1.  Gardner, E. (2011, December 19). Kanye West, Jay-Z respond to "watch the  

t            throne”illegal sampling lawsuit. Retrieved from 

             http://www.hollywoodreporter.com/thr-esq/jay-z-kanye-west-watch-throne-lawsuit-275270

2.  Gardner, E. (2011, December 20). Ninth circuit court of appeals makes

             landmark ruling in copyright case. Retrieved from

           http://www.hollywoodreporter.com/thr-esq/copyright-case-universal-music-veoh-275779

3.  *Gardner, E. (2011, December 21). Songwriter's estate wants control over

             'Santa Claus is comin' to town’. Retrieved from

          http://www.hollywoodreporter.com/thr-esq/songwriters-estate-wants-control-santa-275899