Entertainment
COPYRIGHT
If you are an artist or musician, the copyright law has a significant affect on you. The term “copyright” really means that the creator has the right to copy. The copyright law basically grants the creator the right to (1) reproduce (e.g., make copies), (2) distribute (e.g., sell copies) and (3) perform (e.g., play the song live).
Once the artistic work is in a tangible form (i.e., written), the artist should make an effort to protect the work. Under the present copyright law, a work is copyrighted once it is written or recorded. Although, proof of creation helps to better protect your work. To do this, it is best method is to obtain a registration form from – and register the copyright with – the Library of Congress in Washington, D.C.
It is also important to put the proper copyright notice on songs and recordings that are presented to the public. The copyright notice for songs and sound recordings must include three elements: the symbol (for lyric sheet or sheet music) or _ (for tapes, records, CDs), the year of publication and the name of the copyright owner.
An artistic work is an important possession that needs to be protected. The finest way to secure protection is to copyright your valuable work. Call Macomber Yockey Law and receive a free consultation about securing copyright protection for your artistic creations.
ARTIST CONTRACTS
Artists must negotiate and sign many different types of contracts. Most of the time, the contract is drafted in legal terms and the artist does not understand many of the terms nor the implications. All artists enter into contracts for creation, distribution and sales of their works. Many of these agreements do not favor the artist and can lead to the artist losing money and possibilities for career advancement and the artist will wish to seek freedom from the agreement. This situation has caused many an artist to seek (or threaten) some sort of legal recourse as a means to leave the contract, or else to force a renegotiation of the agreement. Over the years, several options have been available to artists as a means of cancelling a contract.
BANKRUPTCY
In recent years, artists have used a novel and highly publicized approach in their attempt to leave an exclusive contract situation: they have filed for bankruptcy. The Federal Bankruptcy Code states that existing contracts may be rejected if they impair a debtor’s ability to get back on his feet or recover financially. Bankruptcy law has thus armed an artist seeking to break or renegotiate a contract with a powerful weapon. Bankruptcy as a means to break a contract is risky because there is no guarantee that the bankruptcy court will reject the contract in question.
CIVIL CODE SECTION 2855
Another technique to cancel a recording contract is the use of Civil Code Section 2855, also known as the “Seven-Year Statute” According to this statute, “a contract to render personal service…may not be enforced against the employee beyond seven years from the commencement of service under it” Therefore, the Seven-Year Statute prevents a record contract from being enforceable against an artist for longer than seven years. Most recording agreements run for a period of one year, followed by several one-year optional periods. Most often, the periods are contingent upon delivery of recorded product. One way to break a contract is to show the term is essentially open-ended since they end on an unknown future date when the recordings are actually delivered.
Furthermore, under Section 2855, the artist must provide written notice to the employer specifying that the employee from and after a future date certain specified in the notice will no longer render service under the contract by reason of the expiration of the seven year time limit. Several high profile artists have used Section 2855 as a lever in the renegotiation of, or exit from, an existing agreement. For example, in 1992, recording star Luther Vandross filed a suit against Epic Records in Los Angeles Superior Court claiming he was no longer bound to his 1981 contract.
CIVIL CODE SECTION 3423
Section 3423, also known as the”$9,000 Plus Provision” requires that a record company must make increasing minimum annual payments to an artist in order to obtain an injunction to stop an artist from rendering personal services for someone else. If a record company does not meet these contractual requirements, they cannot prevent an artist from recording with another agency. The new law essentially states that a record company can get an injunction only if it contractually guarantees the artist $9,000 in the first contract year, $12,000 in the second year and $15,000 per year in years three through seven. In addition, in years four through seven, the company must have paid the artist additional sums of between $15,000 and $90,000.
MATERIAL BREACH
Another method for getting out of a contract is to charge that the label committed a material breach of contract. A material breach can be alleged in many different forms, but the most common is the lack of proper payment of royalties by the label.
Another breach argument would exist if there is a provision in the record contract whereby the label guarantees that the record company will commercially release a minimum amount of recorded product. If the company does not fulfill its contractual obligations to release, the company may not be able to renew for the next option. However, there must be a specific definition of “release” included in the contract or the record company may have a defense to this claim.
Moreover, an artist could also allege that it has fulfilled its recording obligations to the label. It is important to note that buried within most record contracts is a notice provision stating that any claim of breach by the artist must be submitted in writing to the label with the label having an opportunity to cure the alleged breach. Clearly, many possibilities exist for an artist to argue a breach of a recording contract. Therefore, an artist should have all contracts carefully scrutinized by a professional lawyer. Because recording agreements and other entertainment contracts often do not favor the artist and may be considered patently unfair. An attorney reviewing the artist’s contract at the initial contract negotiation stage can better protect the artist by providing monetary enhancements or an “out” clause into the contract.
If you are an artist negotiating a contract or trying to get out of an existing contract that seems unfair, please contact Macomber Yockey Law for a free consultation.
THE INDIE ARTIST
The music and film industry has drastically changed in recent years. With record sales down and technological advances, many artists are choosing to record their own records and bypassing the route of going with a major recording label. This method favors the artists in many ways as they can keep all of their intellectual property rights and all royalties in the records they sell.
Independent labels usually specialize in a particular style of music and have smaller rosters. An independent label usually has some form of distribution in place, which is necessary to put records in stores. Also, several independents have become successful subsidiaries of major labels, which have provided them with major label distribution.
Another important avenue for the independent artist is the distribution deal where the artist delivers to a record company an agreed amount of completed product for the label to distribute to stores. Often, the label will also market and promote the product. For these services, the label will collect a percentage of the selling price of the record.
Independent artists can also enter into production deals where the artist signs on with a production company. The producer will record the artist’s music and then attempt to obtain a deal with a record label. If the production company is successful in procuring a deal, the royalty paid by the record company to the production company on records sold will be divided between the production company and the artist.
Furthermore, artists can also seek to enter into Pressing and Distribution Deals (P& D Deals). With these deals, the artist delivers a fully mixed master and finished artwork to the record label, which in turn manufactures and distributes the records. One advantage of this kind of deal is that the artist should be able to obtain a higher royalty on sales because the act has already paid for the costs of recording the product.
Independent labels are an excellent route for artists because they can lead to a deal with a major label. With the decline of record sales, major labels prefer to see how the public responds to an acts music before they are willing to sign a deal. An artist can use an independent label to get their music out into the world and build a fan base. Major labels also prefer to give recording deals to acts that can bring a solid fan base to the label.
If you are an artist considering independent labels, distribution deals, production deals, and P&D deals contact Macomber Yockey Law for a free consultation. Some of the operations listed above can be suspect. Thus, an artist should make sure that any deal made is with a reputable entity/person and seek legal advice before entering into such a deal.
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