Entertainment Law Outline

ENTERTAINMENT LAW

TURNER

SPRING 2012

· Attorneys & Agents

· Entertainment Attorneys

· Reasons to hire attorney

· Negotiate/review contracts

· Shop for a deal

· Formation of business entity

· Getting sued

· Types of Attorneys

· Transactional

§ Handle contracts

§ Deal shopping/deal making

· Litigation

§ Courtroom advocacy

§ Mediation

· Why do you need a lawyer?

· Who will the lawyer represent?

· What is the lawyer’s expertise?

· Referral from other clients?

· What kind of contacts does the lawyer have?

· What is the lawyer’s personality?

· Is the lawyer accessible?

· $$$$$$$$

· How does the lawyer expect to get paid?

· Hourly – paid for every minute of work

§ NY/LA – range could be $300-$800/hour

§ Nashville – range is $175-$400/hour

· Flat Fee – lump sum regardless of amount of time it takes to do the task

· Contingency – % based on outcome of case (litigation) or amount of the deal/advance

· Compensation of a lawyer must be “reasonable” based on time/labor required, difficulty of issues, etc. (MRPC 1.5)

· Ethical considerations

· Bound by Rules of Professional Conduct

· Conflict of interest considerations

· Handling client’s money

· Fiduciary duty (unlike record labels)

· Agents vs. Lawyers

· Licensing requirements/Solicitation

§ State regulation of agents (CA/NY)

§ No license = severe penalties ($100-$1,000/thirty days to one year in jail and possible criminal proceedings)

§ No special education needed

§ Allowed to solicit

§ State Bars (lawyers)

§ Must pass each state’s bar exam to practice

§ Highly regulated (Model Rules of Professional Conduct)

§ Seven years of education (3 years law school)

§ Prohibited from in-person solicitation

· Lawyers – ethical issues

· Establishing attorney/client relationship

§ Exists as soon as the client reasonably relies on attorney’s advice

§ Should formally establish relationship via written engagement agreement

§ Term = can terminate at any time

§ Scope of services

§ Payment arrangements

§ Billing

§ No “free” advice!

· Duty of Competence (MRPC 1.1)

§ Legal knowledge, skill, thoroughness and preparation necessary for the representation

§ Complexity of case, specialized nature of the matter, lawyer’s general experience and training

§ Lawyers must use caution in making referrals because they may become liable for incompetent referrals

· Conflicts of Interest (MRPC 1.7)

§ Entertainment industry is typically referred to as “incestuous” because of the small circles

§ Premium is attached to “who you know”

§ Small number of power brokers

§ Sometimes, many in our business look at conflicts as beneficial to the parties — “package deals”; help a newcomer hook up with established individual/act

· Multiple Client Representation

§ “A lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:”

§ representation will be directly adverse to another

§ significant risk that the representation will be materially limited by responsibilities to another client, former client, third person or a personal interest

· How can you represent multiple clients?

§ Written conflict waiver

§ Must disclose potential risks and conflicts

§ Must get written waiver from both clients

§ Consent must be informed consent

· Lawyer can represent both IF:

§ reasonably believe he can provide competent and diligent representation to each client;

§ representation isn’t prohibited by law;

§ representation does not involve claims against each other (litigation); and

§ informed, written consent by each

· Merging Roles

· General rule is that entertainment attorneys who also act as managers/agents are still subject to MRPC to the extent that any activities involved the rendering of legal services

· Can a lawyer also be a manager?

· If so, how?

· Week #2

· COPYRIGHT LAW

· Protecting Intellectual Property in the Music Business

· TRADE SECRETS

· A formula, process, pattern or practice (or compilation of information) that is generally not known or reasonably ascertainable to the public, which allows a business to obtain an economic advantage over competition or customers (i.e. “confidential information”)

· Example: a record label’s royalty formula in its recording agreement

· TRADEMARKS

· A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods.

· COPYRIGHTS

· §106 of The Copyright Act:

The exclusive rights to do and to authorize any of the following:

§ to reproduce the copyrighted work in copies or phonorecords;

§ to prepare derivative works based upon the copyrighted work;

§ to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

§ in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

§ in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

§ in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

· What is copyrightable?

· Literary works

· Musical works (lyrics and music)

· Dramatic works

· Pantomimes and choreographic works

· Pictorial, graphic and scuptural works

· Motion pictures

· Sound recordings

· Ar