Posts Tagged ‘composer’

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Is The Term “Work-For-Hire” A Magic Phrase?

Thursday, December 12th, 2013

By Brian Taylor Goldstein, Esq.

An orchestra wants to commission a composer we represent to create an arrangement of a piece they want to perform. We were hoping that our composer would retain ownership of the arrangement so that in the future if the orchestra, or anyone else, ever wanted to play his arrangement, he would get a royalty. However, the most important thing is that we want the composer get credit for the arrangement whenever it is performed. In the commission agreement they sent us it says that the orchestra will get the right to perform the arrangement for one year, but it also says that: “Artist agrees that this work stated above shall not generate further monetary remuneration to the Artist (ie: a “work for hire”).” This doesn’t make any sense. If we agree to this, would our composer at least get credit ever time his arrangement is performed?

You’re correct. The commission agreement contains conflicting terms. It’s bad enough when attorneys use “legalese”, but when normal people try to use legal phraseology that they do not understand–or, worse, that they “think” they understand—chaos, rather than clarity, often ensues.

As a general rule, the person who creates something automatically owns it and controls all rights. The mere fact that you pay someone for their services does not inherently mean that you own the work they produce or have any rights to the work. For example, paying someone to design your website does not mean you also purchase ownership of the design or have any rights to use the design. Similarly, commissioning someone to provide creative services (such as composing music) does not mean that you own the material they create or have any rights to perform the composition. All rights remain with the author of the work unless either there is an agreement between the parties specifying rights and ownership or the work constitutes a “work for hire.”

A “work-for-hire” means that the person who paid for the work is considered to be the author and owns all rights to the work. However, under U.S. copyright law, a “work-for-hire” occurs in only one of two very specific scenarios:

1)         When an employee creates material for an employer within the scope of the employee’s employment, the employer and not the employee is considered to be the author and the employer automatically holds the copyright. The employee gets nothing but a pay check; or

2)         A work is specially ordered or commissioned for use as a contribution to a collective work; a part of a motion picture or other audiovisual work; a translation; a supplementary work; a compilation; an instructional text; a test; answer material for a test; or an atlas AND the parties expressly agree in a written contract signed by both parties that the work shall be considered a work made for hire.

In your case, I am sure that the orchestra believe that merely using the magic words “work for hire” will automatically transfer all rights and ownership in the arrangement to them. It does not. Why? Because although there is a written contract, the arrangement will not be used as a contribution to a collective work; as part of a motion picture or other audiovisual work; a translation; a supplementary work; a compilation; an instructional text; a test; answer material for a test; or an atlas. (Yes, this is a very odd and restrictive list. Blame Congress…while you’re at it, blame the lobbyists for the motion picture industry, text book industry, etc.) Unless both elements are present, it does not create a “work for hire.” If the orchestra wanted to own the arrangement, the commission agreement would need to include an assignment of copyright and a grant of all rights and title. As it doesn’t, if you were to sign the agreement, the orchestra would, in fact, have no rights to the arrangement. However, you’d also be taking advantage of the orchestra’s obvious lack of knowledge of copyright law as, clearly, they believe they would be owning the arrangement. Should they ever attempt to assert their rights, your composer would need to bring a lawsuit to assert his ownership and nullify their claims. This would not only result in needless legal expenses, but probably make any other orchestra think twice about commissioning your composer.

Rather than engage in legal games, if your composer is not willing to transfer ownership to the orchestra, I would strongly advise you to bring that to the orchestra’s attention and discuss the matter. If the orchestra insists on owning the arrangement, then you can decide whether or not to decline the commission or edit the commission agreement to specify the parties’ intentions. Should your composer decide to assign ownership to the orchestra, the parties can always agree that your composer would be given credit as the composer. However, that must also be specified in the contract! Preferably, in English.

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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.

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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 Agents, Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Presenters, Publishing, Recordings | Comments Closed

Using Existing Recordings–Not So Fast!

Wednesday, April 10th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

A few weeks ago you wrote a great article about how to obtain a mechanical license when someone wants to record music. But what about using a recording that already exists? We would like to promote an upcoming concert at our venue by putting some recordings of the artist on our website. Since the artist gave us the recordings, are we ok?

Thanks…and no, you may not be ok.

Any time you want to use an existing recording of a composition, whether to put on your website, or as a soundtrack to a film or video, you will need to get permission (aka “a license)” from the composer (which often means contacting the composer’s publisher) as well as permission (aka “a license”) from the owner of the recording (which is often a record label.) That’s right, you may need to get two separate licenses! Why? Because copyright law creates a separate copyright in compositions and a separate copyright in the recording of a composition.

Just because an artist or an artist’s manager gives you a recording and gives you permission to use that recording, doesn’t mean that the artist owns the recording or has the rights to give. Even if it is a recording of the artist’s own original composition or if the composition itself is in the public domain, the artist may not own the recording. In which case, the artist cannot give you permission to use it, much less the artist’s manager.

Shortly after I posted the earlier blog you mentioned (The Mechanics of Mechanical Licenses, March 6, 2013), Peter Christ of Crystal Records Inc. (http://www.crystalrecords.com) sent me an email which exactly and accurately addressed this issue. He graciously agreed to let me post it here:

Your explanation was very clear and should help those who want to record music that is not public domain. However, it does not address the situation of a person who wants to use a recording already made, and on a record label, for their web site or their movie or other background music use. It should be made clear that the publisher needs to be contacted and ALSO the record label or other copyright owner of the recorded music.

We sometimes find out that our copyrighted recordings are being used as background music for films or on someone’s web site. This is not legal without our permission, and when it is discovered, the legal expenses can be very high for the perpetrator.

 

Some people want to do it right, and we frequently get requests for license to use our recordings for films, web, etc. We always appreciate that someone is honest and knowledgeable enough to request a license. However, in most cases, they do not realize they need a license both from the record company and from the publisher of the music. And in many cases, the music was recorded under an AFM contract and additional payment must be made through the union to the musicians on the recording. It should be pointed out that even if the music itself is public domain, the recording is most likely not, so permission from the record company, and possibly the union, is definitely needed. So the two minutes or so they want to use can get quite expensive.

Thank you for your excellent column in Musical America.

See, I don’t make this stuff up just to make your lives complicated! Bottom line, when it comes to music rights there are three rules: never assume—always ask—and know who to ask.

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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!

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Posted in Artist Management, Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Presenters, Publishing, Recordings, Venues | 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.

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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!

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

Commissioners Beware!

Wednesday, January 23rd, 2013

By Brian Taylor Goldstein, Esq.

Dear Law & Disorder:

When a composer/songwriter is commissioned to write a song, who owns the copyright to the song? The commissioner or the writer? And for either party, when the other owns the copyright, what kind of controls and/or royalties does the holder have?

As with just about everything in the arts and entertainment industry, these are issues that should be negotiated between the parties. As there are no industry standards (I know I say that a lot, but its worth repeating…there are NO industry standards!), everything is up for grabs in terms of royalties, controls, ownership, etc.

Unfortunately, it’s not uncommon for the parties either not to have a commissioning agreement or for one party merely to “assume” that commissioning a work automatically conveys certain rights. Nothing could be further from the truth. In the absence of a written agreement, copyright law determines ownership and, in such cases, the law is quite simple: the mere act of payment does not convey any rights or ownership. The only exception would be if an employee is paid to create or write something for their employer or if there is a written “work-for-hire” agreement between the parties. Otherwise, the commissioning fee only pays for the artist’s services. Ownership of the underlying work, including all rights, remains with the author.

So, for example, if a commissioner agrees to pay a composer $10,000 to write a concerto, unless there is a specific agreement between the parties that the commission fee includes performance or recording rights, the commissioner is entitled to nothing other than the joy of knowing he or she has paid for beautiful music. If the commissioner also wants to own the song, or record or perform it, then those terms need to be specifically negotiated and agreed to between the parties. This does not necessarily mean that the commissioner is required to pay extra for such rights. Everything is negotiable. It’s perfectly acceptable, and quite common, to include certain performance or recording rights as part of the commission fee. Its also just as common for the composer to be entitled to royalties or other payments in addition to the commission fee. Even in a case where the commission fee includes an assignment of full ownership, the composer can still ask for royalties as well as reserve performance and recordings rights of their own.

In short, all rights must be specified. If you are commissioning music, know what you are paying for. If you are being commissioned, know what you are selling. Never assume!

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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!

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

Ask, and Ye “May” Receive…or Not

Wednesday, January 9th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder,

I am a music professor at a medium-sized state college. We have two questions with regard to live streaming some of our concerts and recitals. We, of course, have paid the ASCAP and BMI licenses/fees to cover the rights for live performances. I believe the licensing agencies base the amount of the fee on the size of the school, and we pay a flat amount each year. Does paying those licenses for live performances also cover streaming the concert live? Our department chair believes this to be the case.

The other issue involves archiving the recordings of the concerts, or leaving them on the website for a time after the concert so patrons (e.g., parents of students or any other interested parties) can view the concert at a later date if they had a conflict the day of the original concert and were unable to watch it live. Would this practice also be covered by the licenses or fees we’ve already paid? Is this a grey area in which the law has not yet caught up with the technology, or would this practice be a violation of copyright?

I know of other schools whose music departments are streaming performances. Any clarification you could give on this subject would be most helpful not only to us but to many schools throughout the country.

Some ASCAP/BMI licenses for live performances also cover the right to stream the concert live. However, as with all rights, you only get what you ask and/or pay for. So, if you paid for the right to stream live concerts, then your license covers that. If you only paid for live concerts, then it does not. You need to check the license terms and agreement you received from ASCAP/BMI.

With regard to the issue of “archiving the recordings of the concerts”, the good news is that it is not a grey area at all. The bad news is that it is not a grey area at all. ASCAP/BMI licenses only cover live performances and, in some instances, streaming a live performance. However, making an audio/visual recording of a concert to be seen or heard at a later a date or…gasp…placed on a website for the whole world to access, is quite another. Such rights are called “synchronization rights” and they must be arranged separately. When you purchase the right to perform music at a live concert, there is no “inherent right” to make an archival recording or a recording for “non-commercial” purposes. There is no “inherent right” to make a recording of any performance at any time under any circumstances without the permission of (a) the composer/publisher of the music (assuming the composition is not in the public domain) and (b) the performers themselves.

As opposed to the law not catching up with technology, this is more of an issue where the performing arts industry has not caught up with the law. I, too, know of many schools and non-profits that regularly make archival recordings and stream concerts. While some of these are licensed, many are not. There is a common misperception that, so long as something is used for educational purposes or no money is charged, then no licenses or permission is required. Nothing could be further from the truth. While many composers and publishers are happy to grant liberal permission, or even turn a blind eye to unauthorized used, others are not. It’s anyone’s guess as to which one you’re dealing with until it’s too late. The safest rule of thumb is: never assume you have permission to do anything you haven’t specifically asked for. Always ask permission. It protects artists, protects your institution, and perpetuates the value of the arts.

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Both Robyn Guilliams and Brian Taylor Goldstein will be attending the Association of Performing Arts Presenters Annual Conference in New York, providing both workshops and consultations. Please stop by the 4th Floor of the Hilton and say hello!

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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!

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Posted in Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Non-Profits, Presenters, Publishing, Recordings | Comments Closed

Is That A Music License I Hear?

Wednesday, June 27th, 2012

By Brian Taylor Goldstein

Do we legally have to have a music license if we have bands performing in our Country Club at weddings, social events, etc.?

Yes. Anytime music is publically performed, either live or by playing a recording through a sound system, a “performance license” is required. A “performance license” is a fee paid to the composer for the right to perform his or her composition publically (as opposed to performing music in your living room for friends and family.) Whenever you hear music being played in a department store, or in a restaurant, or in an elevator—even though its being played in the background and even though there are no fees or tickets to listen to the music—someone, somewhere has paid a performance license so you can enjoy an enhanced shopping, dining, or elevator-riding experience. Similarly, whenever music is performed live at a concert hall, nightclub, restaurant, or even, yes, at a private wedding held at a country club, someone, somewhere must obtain a performance license.

As the owner/operator of a performance space/venue, it is your legal responsibility to ensure that the necessary rights and authorizations have been obtained with respect to all copyrighted music that is publicly performed in your venue—even if the “performance” is for a private party. Just because the party is “private” or “by invitation only”, a country club itself is a public venue and the wedding guests are “public.” So, if your space is used for a wedding, and the happy couple hires a wedding band, it is your responsibility to ensure that there are appropriate licenses for the music being performed by the band.

While you could require the band or the event organizer to obtain the necessary licenses, that will not relieve you from responsibility (ie: liability) should they fail to do so. Most venues where live music is performed are better advised to obtain blanket performance licenses from the three performance rights licensing organizations: ASCAP, BMI and SESAC. Each of these organizations controls the rights to 1000s of compositions and a “blanket license” permits all the music from their catalogs to be performed at your venue. Its like one stop license shopping. While this will require you incur the license costs yourself, you can pass the costs along through your rental fees. Its also the best and only way to ensure that your legal responsibility as the owner/manager of the venue is being met. In other words, you need to obtain music licenses for the same reason you carry insurance: to protect the venue from liability.

If nothing else, think of it this way: for many artists/composers with lousy record deals, their performance licenses may be the only fees they receive for their work. If dancing and listening to their music makes the wedding guests happy, and happy wedding guests means happy Country Club members/renters, then all that happiness is at least worth a fee to the composer.

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“Law & Disorder:Performing Arts Unit” will take a short break on Wednesday, July 4. Our next post will be on Wednesday, July 11.

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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!

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Posted in Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights | 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.

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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!

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

Generic Forms: A Prescription For Trouble

Tuesday, May 1st, 2012

By Brian Taylor Goldstein

HELLO –

How can an organization that presents music programs, and puts some of them on the Internet, find a good general release form for artists/speakers to sign?

The tricky part about forms is not finding them, but choosing which one is right. There are lots of sources for good general release forms—the Internet, formbooks, colleagues, etc. We provide a list of formbooks that we recommend on our website www.ftmartslaw-pc.com. However, to select the right form, you need to know what you need.

A “release” is just another word for “permission”, and, like all other contracts, it memorializes an agreement between two parties. So, in order to know what form you need, you need to know what permissions you need and what permission the other party is willing to grant. For example, if you are presenting a music program and you want a form through which a musician will give you the right to record their performance and place it on the internet, you will want a form that addresses the following issues: (1) Is the musician expecting to get an extra fee in exchange for granting permission?(2) Do you want to place the entire performance on the Internet, or just excerpts?(3) Will you be posting the performing on your own website or on other websites such as YouTube?(4) Can you leave the recording up indefinitely, or will the musician be able to tell you to take it down? (5) If there is more than one musician performing, such as a band or ensemble, will you require a release from each performer or does one person have the right to grant permission on behalf of everyone else? and, perhaps most importantly, (6) Is the musician performing his or her own music? Remember: unless the musician is also performing music he or she wrote themselves, they cannot give you permission to record it. You will need to get that permission from the composer as well as from the musicians.

There is no “generic” permission form or release that will apply to everyone in every situation. Any form or any contract is only “good” if it addresses all of the elements of your specific circumstances and successfully communicates the understanding between the parties and covers all of the necessary. It may not surprise you to learn how often I have been contacted by someone who found what they believed was a “generic” form, filled in the blanks, and found out too late that it didn’t give them the rights or permissions they needed for their specific circumstances. So, when it comes to forms, don’t go for the generic…go for the prescription you need. Before you go hunting around for the right form, first figure out what you need, then start reading and editing forms and until you get the one that fits just right.

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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!

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Posted in Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Recordings, Venues | Comments Closed

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