Artist Rights Workshop 2009

Transcription

1 Empower yourself. Protect your music. Workshop Booklet February 21, :00-4:00 pm University of the Pacific s Library Community Room

2 Table of Contents page Event Guide 1 Sponsors & Acknowledgements 2 Introduction 2 Speaker Biography 3 Simulation #1: Copyright Basics 4 Simulation #2: Work for Hire & PROs 5 Simulation #3: Performance Contracts 6 Simulation #4: Session Releases 7 Note Paper 8 Additional Resource: Sample Session Release Contract 10 Glossary 12 Resources 13 References Cited 13 i

3 Event Guide Pre-workshop Questionnaire (available at the door) Opening Remarks Professor Thomas Brierton Meet & Greet (round table introductions) Introduction of Event Speaker Michael Aczon Simulation #1: Copyright Basics (copyright types, infringement, copyright rights) Stretch Break Simulation #2: Work for Hire & PROs (works for hire, public performance monies and societies, mechanical licenses) Simulation #3: Performance Contracts (how to use a performance contract and what to include) Stretch Break Simulation #4: Session Releases (when to use a session release and what to include) Post-workshop Questionnaire Reception (refreshments & book signing) 1

4 List of Sponsors University of the Pacific s Undergraduate Research Task Force University of the Pacific s Conservatory of Music Pacific Fund University of the Pacific Library University of the Pacific s Music Management Program University of the Pacific s Center for Teaching & Learning McGeorge School of Law s Entertainment Law Society Special thanks to Keith Hatschek, Program Director of Music Management, University of the Pacific Thomas Brierton, Prof. of Law, University of the Pacific & McGeorge School of Law Joseph Thuesen, 3 rd year law student at McGeorge School of Law The staff of the Conservatory of Music, especially Janice Smith The staff of the University of the Pacific Library, especially Sally DeLorenzo Introduction Welcome to the 2009 Artist Rights Workshop! We are excited you have chosen to participate in today s events. Whether you are a professional musician or a student, a legal scholar or an individual with a sincere interest in entertainment law, it is our hope you will leave today with the knowledge necessary to protect yourself and your creative works in today s entertainment industry. Throughout the day s talks and discussions, you will develop a heightened awareness of the legal issues facing our industry as well as an understanding of how these issues fundamentally affect you, your career, and our society as a whole. We have purposely developed and designed the day s presentations to foster a hands-on approach to learning. Throughout the event, you and your peers will gain invaluable advice from an entertainment lawyer, explore through discussion various solutions to real-world situations, and have the opportunity to ask questions of and speak with our guest speaker, Michael A. Aczon. We truly hope today s workshop is an experience you enjoy and find useful as you continue your career and many prosperous journeys. Class of 2011, Conservatory of Music 2

5 Guest Speaker Michael A. Aczon San Francisco Bay Area based Michael A. Aczon has practiced entertainment law and personally managed select clients since As a lawyer, he has represented a variety of clients in virtually every musical genre from unsigned local artists to multi-platinum artists and writers to L.A. and Nashville-based companies. Says San Francisco Examiner s Edie Sellers, Aczon is bright, funny and supremely knowledgeable. He possesses that too rare ability to distill complicated issues of entertainment law and convey them in a clear, storyteller language we all can understand. Michael s book The Musician s Legal Companion is quickly becoming a must-have for musicians of all levels of experience and success in the Industry. He has been a columnist for Guitar Player Magazine and Electronic Musician Magazine. Michael is a member of the Music and Recording Industry faculties at San Francisco State University and Diablo Valley College. He has served on the National Entertainment Law Initiative Committee for the Recording Academy and is a cochairman of the San Francisco Chapter s Urban Outreach Committee. Michael lectures at schools and music industry seminars nationwide. Michael s latest book, The Musician s Legal Companion, is available at your local bookstore and online at Amazon.com 3

6 Simulation #1: Copyright Basics Dillon has composed a work that he expects to serve well as a follow-up to his recent success as both a composer and recording artist. Without taking any action to protect this and other original compositions, Dillon hires side musicians and begins recording. Fact Pattern 1A: A week after completing the recording process, Dillon discovers 1. his unreleased composition topping digital download charts, 2. several remixed versions, and 3. purchasable, physical CDs containing his work. Fact Pattern 1B: Two weeks after completing the recording process, Dillon discovers 1. a local radio station broadcasting a song sounding remarkably similar to his latest composition and, 2. upon further research, discovers this similar sounding work to be properly registered with the U.S. Copyright Office. Consider What course of action is available to Dillon? What must he prove to secure his rights? How might Dillon avoid this second scenario and how might he proceed to facilitate a successful conclusion? Notes 4

7 Simulation #2: Work for Hire & PROs Michelle, a talented songwriter with a modest catalog of songs and a reputation for creating memorable melodies, has recently granted The Act, a four-piece rock band, the right to record and perform two of her songs. Michelle has properly protected her works. Fact Pattern 2A: After reviewing the contract drafted by The Act, Michelle is concerned with the group s claim that her first song is a work for hire. Michelle 1. composed the song with the group in mind, but did not do so at the written or verbal request of The Act and 2. feels she is deserving of a royalty (the current contract does not include such a provision). Fact Pattern 2B: After reviewing a rough cut of The Act s latest album, Michelle is concerned 1. that the artistic liberties taken by the group have detrimentally and drastically altered her second song and 2. is not convinced its release would be beneficial to her career or reputation (this will be the song s first recording). Consider Should Michelle approach the act with her concerns regarding the use of her works? How best can this be done? What rights can Michelle assert if she should so choose? If Michelle and The Act are able to reach an agreement satisfactory to both, what should Michelle do to ensure she will receive the monies associated with the group s public use of her works? Notes 5

8 Simulation #3: Performance Contracts John and Paul, both talented and locally successful musicians, are looking to launch a new act called the Fellowers. The duo is approached by a local venue owner who is interested in booking their new band. This is both John s and Paul s first experience with the management of a group. Fact Pattern 3A: The venue owner has specifically requested (verbally) the Fellowers 1. perform an opening 45 minute set and a closing 30 minute set as well as 2. arrive 1 hour prior to the start of the show. John and Paul find the owner s requests agreeable (verbally) and have some of their own, including 1. pay equal to that of more established bands, 2. an advance for the costs of rehearsal time, 3. and an agreement to a rider that stipulates: air conditioned and separate dressing rooms a bowl of each member s favorite colored M&Ms microphones properly mixed and the supply of adequate monitors and amps Consider How might John and Paul best approach the owner regarding their requests? What pay options/methods are available to John and Paul? Which would be most beneficial to the group? How can John and Paul insure they will be paid? What is and is not acceptable in John and Paul s rider? Should John and Paul turn their verbal agreement into a written contract? Notes 6

9 Simulation #4: Session Releases Jane, a recent graduate of a renowned conservatory of music, has booked a studio and hired session musicians to accompany her on three of her original works. The session concludes wonderfully and the third track in particular shines above the rest. Fact Pattern 4A: Several months later, Jane is preparing to release a second, larger project with the help of an independent label. She is including the third track from her first project. A week prior to its release 1. Jane receives a call form the cellist (hired for her first project) providing her with his congratulations and expectation of a royalty. 2. Jane informs the cellist she does not intend to provide him with a royalty. 3. The cellist informs Jane he will seek representation in order to secure his rightful share of her profits. Consider How could Jane have avoided this situation? What key points might she have included to insure no misunderstanding between her and the side musicians? How might Jane proceed to facilitate a positive conclusion for all parties involved? What might this agreement look like? What recourse does Jane now have to move forward with her second project? Notes 7

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12 Sample Session Release Contract Courtesy of Michael A. Aczon Joe Musician (Mailing Address) XYZ Recording Company 0000 Recording Company Way Anytown, CA 0000 RECORDING SESSION AND IMAGE RELEASE Dated: Dear Joe: This letter shall confirm our understanding and agreement with regard to your rendering services as a non-featured side musician in connection with the production of audio visual Master Recordings ( Master or Masters, as applicable) to be embodied on phonograph records and audio visual recordings (including, but not limited to, DVD and similar configurations) featuring that certain recording artist professionally known as Josephine Artist which are intended for commercial release. The Masters that we have hired your services embody the following musical compositions: Josephine Sings The Blues Josephine Rocks Out Rap, Josephine, Rap We hereby engage your services as a non-featured side musician and you have accepted such engagement. You agree to be available at such times as we shall designate (after consultation with you regarding your other professional engagements) including, without limitation, at rehearsal sessions, recording sessions, and mix-down sessions in connection with the production of the Masters. You agree to diligently, competently, and to the best of your ability, experience and talent to perform at our satisfaction all of the services required of you hereunder. The term of this agreement shall commence as of the date of our commencement of principal recording of your recording session(s) and shall continue until you have completed your recording session(s) to our satisfaction. As full compensation and conditioned upon your full and faithful performance of all the terms and provisions hereof, including, without limitation, your actual rendition of the services which you are to perform hereunder, we shall pay you the sum of $ upon completion of your services. You acknowledge and agree that you are not entitled, nor shall you make any request from us or our assigns for any further payment of fees, royalties, residual income or any other compensation or consideration in connection with your performances hereunder, regardless of the number of versions, so called remixes, or other derivative works on which your performances may be utilized. Without further payment than provided for in this Agreement, you agree that Josephine Artist and her affiliate record label shall own the entire worldwide right, title and interest, including, without limitation, the copyright, in and to the audio and audio-visual Masters embodying your performance; any incidental words, lyrics, or music (including, but not limited to spontaneously created, ad-lib, or improvised material) provided by you on 10

13 your performance; the performances embodied therein and the results and proceeds of your services hereunder, as our employee for hire for all purposes of the applicable copyright laws, free of any claims by you or any person, firm or corporation. Alternatively, you grant to us the entire worldwide right, title and interest derived from us, including, without limitation, the copyright, in and to the Masters. Notwithstanding the foregoing as it may relate to copyright purposes, you are rendering your performances hereunder as in independent contractor. You hereby acknowledge and agree that we or our assigns may make derivative works of such copyrighted Masters embodying your performances, including, but not limited to, different versions (i.e. a cappella versions, derivative work, or edited versions), or re-mixes as we may determine at our sole discretion. In addition, you grant to us and our assigns the worldwide right in perpetuity to use and publish and to permit others to use and publish your name, likeness, voice, photograph, video images and other biographical material in connection with your services and performances hereunder and the results and proceeds thereof. We shall have the right to assign any and all rights granted herein to any person, firm, or company. Your rights and obligations under this agreement shall not be assignable. We shall make reasonable efforts to accord you credit on copies of phonorecords embodying your performances which are distributed for commercial sale; however, we shall not be in breach of any of our obligations whatsoever if such credit shall not be given. You warrant, represent, covenant and agree that: (a) You have the right and power to enter into this agreement, to grant the rights granted by you to us hereunder and to perform all the terms hereof; and (b) No materials, ideas or other properties furnished or designated by you and used in connection with your performances hereunder will violate or infringe upon the rights of any person, firm or corporation, including, but not limited to, any violation of copyright or contract rights. You hereby indemnify, save and hold us and any person, firm or corporation deriving rights from us harmless from any and all damages, liability and costs (including legal costs and attorneys' fees) arising out of or in connection with any claim, demand or action by us or by any third party which is inconsistent with any of the warranties, representations, covenants or agreements made by you in this Agreement. You shall reimburse us or our assigns on demand, for any loss, cost, expense, or damage to which the foregoing indemnity applies. You acknowledge that you have been represented by independent counsel or have had the unrestricted opportunity to be represented by independent legal counsel of your choice for purposes of advising you in connection with this Agreement. If you have not been represented by independent legal counsel of your choice in connection with this Agreement, you acknowledge and agree that your failure to be represented by independent legal counsel in connection with this Agreement was determined solely by you. The terms and provisions hereof, this Agreement shall be binding upon and inure to the benefit of the respective successors, assigns, and personal representatives of all parties. This Agreement contains the entire Agreement of the parties relating to the rights granted and obligations assumed herein. Any and all representations, modifications or amendments concerning this Agreement shall be of no force or effect unless contained in a subsequent written modification signed by all parties. Please acknowledge your receipt of your session fee of $ and that you have read, understand, and acknowledge your agreement with us by signing in the space indicated below. JOSEPHINE ARTIST JOE MUSICIAN 11

14 Glossary Advance: A payment made to an artist in expectation of future profits. The artist is usually obligated to repay the advance (often in the form of withheld royalties). Catalog: The entire collection of an artist s or group s songs, whether they be original compositions or song recordings of works composed by other individuals (Greatest Hits albums usually draw upon an artist s catalog). Charts: Rank top selling albums, artists, and songs for a specific period of time (example: Billboard 200) Cut: A particular recording (often one of several recordings) made by an artist of a work. Independent Label: A label independent from (though not necessarily unassociated with) a major record label. Often, these companies are smaller than the major record labels. Infringement: The unlawful and/or unauthorized use of another s work. The person suing for infringement must prove 1) the person committing the infringement had access to the original work and 2) the infringing work sounds remarkably similar to the original work. Mechanical Licenses: The license that must be granted in order to include a recording of another s work on your album (often involves royalties). New Media: Music distributed in the form of ring tones, callbacks, etc. Online Distribution: The distribution of music via the world wide web and applications, such as itunes, that transmit data in a similar fashion. Performing Arts Works (PA) Copyright: One of the two types of copyrights that specifically protects a work s tangible (that is written) form. Typically associated with the publishing industry. Performing Rights Society/Organization: Companies responsible, under contract with publishers, to issue licenses for songs, pay royalties to songwriters, and to collect monies associated with the public performance of copyrighted and registered works. Print: The publication (see Publish) of a work in its tangible form (often sold to consumers as sheet music). Public Performance Monies: Monies generated by and paid to the composer for the performance of his/her work on television, radio, or other public venues (concerts included). Publish: The distribution of a work in print (that is tangible) form. Rider: Portion of a performance contract that consists of the tailored requests to a venue by the artist or group. Royalty: Payment made to an artist for the use, sale, or individual replication of their work (in other words, a payment made each time an artist s work is used). Session Musicians: Musicians hired to perform on a recording but not considered a part of the act. Typically, these musicians do not receive a royalty. Session: A particular segment of time spent in the recording studio during the recording process (may be measured in hours or days). Set: A portion of a concert comprised of several songs but not forming the entirety of the performance (there is often more than one set to a concert). Side Musicians: Musicians hired for a specific tour, performance, or period of time but who are not recognized as an integral part of the act. Sound Recording (SR) Copyright: One of the two types of copyrights that specifically protects a sound recording (such as a track of an album) of a work. Typically associated with the recording industry. Work (made) for Hire: A copyrightable work created by the author at another s request and to which the creator releases all claim upon successful execution of a contract (typically upon completion of the work and receipt of payment). Compiled with the help of The Musician s Legal Companion by Michael A. Aczon and All You Need to Know About the Music Business by Donald Passman 12

15 Resources Books All You Need to Know About the Music Business by Donald S. Passman Beyond Talent: Creating a Successful Career in Music by Angela Myles Beeching Entertainment, Media, and the Law by Paul C. Wieler How to Get a Job in the Music Industry by Keith Hatschek Music Law: How to Run Your Band s Business by Rich Stim Musician s Business and Legal Guide by Mark Halloran The Musician s Legal Companion by Michael Aczon New Songwriter s Guide to Music Publishing by Randy Poe This Business of Music by M. William Krasilovsky Trade Magazines & Websites Billboard Magazine ( Performing Rights Societies ASCAP ( BMI ( SESAC ( Copyrights United States Copyright Office Legal California Lawyers for the Arts ( References Cited The information provided in this booklet has been compiled by A. Bryce McLaughlin with advice from Professor Keith Hatschek and Professor Thomas Brierton and with information from the following sources: Aczon, Michael A. The Musician's Legal Companion. Boston: Course Technology, Passman, Donald S., and Randy Glass. All You Need to Know about the Music Business. New York: Free P, Stim, Rich. Music Law: How to Run Your Band's Business. Nolo. 13