Archive for the ‘Trademarks’ Category

Artist Visa Updates, Non-Compete Agreements, Manager/Agent Trust Accounts, 1st Amendment Poop Jokes

Wednesday, April 5th, 2023

LAW & DISORDER

Performing Arts Division

April 6, 2023 

INSIDE THIS ISSUE:

• Artist Visa Updates

• Non-Compete Agreements

• Manager/Agent Trust Accounts

• Is There A Constitutional Right

To Poop Jokes?

 

Artist Visa News & Nausea 

• The Status of Proposed Petition Fee Increases

Thanks to all of you who took the time to write USCIS and the denizens of Congress to object to USCIS’s loathsome proposal to raise petition fees by 300%. A lot of people have since been asking what happens next and what to expect. It’s hard to say. Typically, when USCIS imposes new rules and policies they give 60 – 90 days advance notice. In this case, should USCIS decide to implement the fee increases, my belief is that various lawsuits will be filed to enjoin them from going into effect while they are challenged in court.

So, while you can expect nothing to change within the immediate future, beyond that is anyone’s guess. I know that the lack of certainly is going to make it hard when budgeting for 2023/2024 tours, but nothing about getting visas for artists to perform in the US has ever been a bedrock of dependability or predictability.

• DOS Increases Visa Stamp Application Fees

Speaking of fee increases, not to be upstaged by its nefarious cousins at USCIS, the US Department of State announced on March 28, 2023 that US Consulates will be raising the minimum fee for visa stamp applications from $190 to $205 effective 5/30/23. I’d like to say that this will allow them to hire additional staff to address the significant backlogs and delays that continue to plague US Consulates around the world, but I would be lying if I said that. Instead, except in rare, dire, and unusual circumstances, no one should expect to submit a visa stamp application at most US Consulates and get the visa stamp back in less than 2 – 3 weeks, or longer. In other words, whilst I do not in the least disagree with the indignant music director who sent me an email complaining about the “iniquitous absurdity” of a US Consulate refusing to accommodate his tight international performance schedule, he nonetheless still had to wrench up his big boy pants and accept the cruel slap of indifferent reality.

• Current USCIS Service Centre Processing Times:

Vermont Service Centre: Standard processing: 6 – 8 weeks

Premium processing: 9 – 10 days

California Service Centre: Standard Processing: 3 – 4 months!

Premium Processing: 13 – 14 days

If some of you have filed petitions at the California Service Centre and receive a notice that your petition is being transferred to another service centre DO NOT PANIC. To deal with backlogs, USCIS is randomly transferring petitions to other service centres.

• Request for Evidence (RFE) Alert:

In circumstances where managers/agents have filed visa petitions in which they have also signed the US engagement contracts on behalf of their artists, we have recently been seeing USCIS issuing RFEs asking for (i) proof that the artist has authorized the manager/agent to sign on their behalf and (ii) proof the both the artist and each presenter have authorized the manager/agent to be the petitioner. While you “could” just provide USCIS with copies of management/agent agreements and include petitioner appointment language in all engagement contracts, that would presume a USCIS examiner will read them much less comprehend multisyllabic words. Its simpler just to have everyone—the artist and each presenter/venue—sign a piece of paper saying “I appoint X to be the Petitioner.”

Legal Issue of the Month:

Are non-compete/non-solicitation agreements a thing of the past?

Whether it’s a management company hiring an associate or a non-profit organization hiring a development director, its not uncommon in the arts and entertainment industry for employment contracts to include non-compete provisions which generally serve to prevent employees from taking jobs with an ex-employer’s competitors or clients for a certain period of time after they leave.

On Jan. 5, 2023, the Federal Trade Commission released a proposed rule that would bar employers from making workers agree to non-competes. The proposed rule is based on a preliminary finding that non-competes constitute a form of unfair competition in the labour market, lowering wages, and stifling innovation, among other issues, and therefore violate Section 5 of the Federal Trade Commission Act. The proposed rule, as written, would apply to independent contractors and unpaid interns as well as employees, and it would make companies retroactively rescind non-competes they’ve already secured.

Non-solicitation agreements, whereby employees are forbidden from soliciting existing clients, customers, or employees of their employers, as well as agreements that prevent ex-employees from using or disclosing the proprietary, non-public information of their ex-employers (such as engagement contracts, books and records, tour budgets, etc.) would continue to be valid provided they are narrow, targeted, and not silly. For example, presenter and venue contact information, or anything that could be found on its own just by asking someone else or through a google search is neither proprietary nor confidential.

As most courts will not enforce broad non-competes and non-solicitation agreements anyway, this new rule would prevent employers from bullying or threatening their employees with frivolous lawsuits by not allowing such provisions to be in a contract in the first place.

Dear Law and Disorder:

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

“Manager/Agent Trust Accounts”

Dear Law and Disorder:

I am considering working with an agent, but almost every agent I speak with wants to collect my engagement fees on my behalf. Why can’t I collect my fees and just pay the agent? If an agent collects my fees, should I ask for a separate bank account? What about statements? Is it reasonable to ask for monthly accountings? When do I get paid? What’s standard?

First, and foremost, nothing in this business is “standard.” Yes, there are penchants and preferences, but if you took a poll of 50 people in our business and ask what is “standard”, you’d get 50 difference answers—with all 50 basing their definition upon their own self-interest. So, if anyone tries to force you into an arrangement you don’t want by claiming its “standard” or “this is what everyone does”, run away! If parties truly want to work together, everything is negotiable.

All that being said, it’s not uncommon for an agent or manager to prefer to accept fees on behalf of an artist. Among the very legitimate reasons for this, it allows artists to focus on performing and not bookkeeping, especially when on tour, and allows the agent to follow up on contracts, payments, and other logistical issues on an artist’s behalf. It’s also easier for an agent to collect fees, deduct commissions, and send the balance to the artist rather the agent having to issue an invoice or chase down an artist who, again, may be on tour or simply abstains from reading any emails that contain the subject line “balance due.”

Both licensed and un-licensed agents are legally required to keep all collected money in a separate account and issue statements accounting for all money collected and held on behalf of an artist. Keeping money in a separate account not only makes booking and accountings easier, but also helps to ensure than an artist’s money doesn’t accidentally get co-mingled with the agent’s own money. Also, in the event an engagement is cancelled, a deposit may need to be returned. Having the money held in a separate account ensures that the funds are not prematurely dispensed, or used for unrelated purposes, for which both the artist and agent could be liable.

Is There a Constitutional

 

Right To Poop Jokes?

The US Supreme Court is poised to address one of the most epochal issues on everyone’s mind: is there a 1st Amendment right to tell poop jokes?

Currently before the Supreme Court is Jack Daniel’s v. VIP Products wherein VIP Products, the nation’s second-largest maker of dog toys, is accused of infringing upon the whiskey maker’s trademarked bottle shape and label by manufacturing and selling squishy dog toys that resemble a bottle of Jack Daniel’s with the label showing a dog and the by-line “dropping the old No. 2 on your Tennessee carpet.” While traditional parody exceptions already in place would normally support VIP, Jack Daniel’s contends that the value of its trademark will be diminished if people begin to think its product makes dogs poop. So, VIP has responded by arguing that the 1st Amendment supersedes Trademark Law and allows parody to cross any lines or restrictions, regardless of how offensive or objectionable to the party being parodied—which would be a superfluous argument in most cases had not several lower federal courts agreed.

Notwithstanding the fact that so many of its customers apparently serve whiskey to their dogs that Jack Daniel’s is concerned with lost sales, should VIP prevail it would essentially eliminate trademark law when it comes to parody. It’s a classical example of an inane case brought purely because litigators are willing to litigate anything if you pay them enough, the outcome of which could have larger consequences: Does a 1st Amendment claim of parody automatically allow anyone to use another’s name, song title, or logos without restriction and under any circumstances, whether its by association with poop, porn, or politicians, regardless of the owner’s objections or concerns?

For those of you who feel so moved, you can read more about this here:

www.vox.com/politics/23650136/supreme-court-poop-jokes-jack-daniels-vip-dog-toy-trademark-lanham-act

Deep Thoughts

“With enough spizzerinctum, there’s almost nothing you can’t accomplish.”

Cynthia Bowes-Palmer

 

 

 

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GG Arts Law provides a comprehensive range of legal services and strategic support for the performing arts, including: Artist Visas, Taxes, and Touring; Rights & Licensing; Negotiations & Representation; Contracts; Business & Non-Profit Organization & Management; Project Management; and Strategic Consulting & Planning.

 

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!

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Posted in Contracts, Employees, Independent Contractors, Law and Disorder: Performing Arts Division, Trademarks, Visas | Comments Closed

A Tribute To Copyright Infringement

Wednesday, September 16th, 2015

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder

Could you please advise how a copyright application would be filed for a tribute musical of deceased popular singer? The show would consist of all of his songs. Would it be better to file it as a compilation or concert? Can all the songs be included in one application? Thank you

Is this, by any chance, the long awaited musical “Indian Love Call”, a tribute to the intoxicating sounds of Slim Whitman? I heard there’s a lost studio recording somewhere featuring Slim Whitman, Tiny Tim, Axl Rose, and Celine Dion performing a cover of “Total Eclipse of the Heart.” It would make a great Act I finale.

For most musicals, a copyright registration application would include the book, music, and lyrics written by the authors. However, tribute musicals such as Mamma Mia, Jersey Boys, All Shook Up and Beautiful, which are also known as “jukebox” musicals, are different in that they typically feature works which has been previously performed and composed by others. The authors and creators of such musicals must license all the music from the original composer or composers. This gives them the rights to use the music and lyrics in the musical, and usually to record a cast album, but gives the creators of the musical no ownership rights in the individual works themselves. You cannot claim copyright ownership, or file a copyright registration, with regard to any material that is not original or which you do not either own or create yourself.

Producing a tribute musical about a singer can pose a number of additional challenges in that, unless the singer also wrote the music he sang, you would need to obtain licenses from the publishers and composers of the songs the singer performed. In addition, the name, appearance, or costume of the deceased singer might be considered trademarks controlled by his estate.

If your production is a scripted musical (ie: with a story, plot and characters), as opposed to a concert, then you could claim a copyright in the book and spoken dialogue, and, perhaps, the order in which the music was performed, but not in the music and lyrics themselves. Even arrangements or orchestrations would need to be licensed from the original composers and could not be included in your copyright registration unless your license agreement permitted you to do so.  If your production is actually more of a tribute concert, then there may actually be very little you can copyright or own.

The whole point of registering a copyright is to claim ownership and stop others from copying or infringing your work. However, in the field of tribute performances, there may actually be more the publishers or composers of the music and the estate of a deceased singer can do to stop you than you can do to stop others. Remember, a “tribute” is not a magic word that means “copyright or license free.” The entertainment field is littered with the carcasses of concerts and performances that were stopped because the subject of a tribute did not like, want, or approve the gesture. In any artistic venture, before investing the time, talent, and energy it takes to create and protect your work, you first want to make sure you are not improperly using the time, talent, and energy of other artists that came before you.

___________________________________________________________________

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.org.

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!

 

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Posted in Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing, Trademarks | 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!

 

 

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