Entertainment Law – Professor Turner, Fall 2010
1. Representing Talent Attorneys, Agents and Ethics
a. Attorneys and Agents
i. Agents – the talent agent finds work for the artist and secures employment
1. Agents must be licensed by the state
2. Fees for an agent are typically capped at 10%.
3. Agents must have a franchise from the various unions such as SAG, AFTRA, Af of M
ii. The Personal Manager – provides advising and counseling for the artist on the development of his/her career.
1. Poorly defined job
2. No cap on fees, typically 15%-25%
3. No license needed to become a personal manager.
iii. Entertainment attorneys
1. Negotiate and review contracts
2. Shop for deals
3. Form business entities
4. Handle artist if they get sued
1. Two Types
a. Transactional
i. Handle Contracts
ii. Deal shopping/Deal Making
b. Litigation
i. Courtroom Advocacy
ii. Mediation
2. Payment for Lawyers services – Lawyers typically get 5%
a. Can be hourly – can get expensive
b. Flat fee – lump sum regardless of amount of time it takes to do the task
c. Contingency
i. % based upon outcome of case (litigation) or amount of the deal/advance. Very rare. Litigation related usually
d. Compensation of a lawyer must be “reasonable” based on time/labor required, difficulty of issues
i. MRPC 1.5 –
1. requires hourly and contingent fees to be reasonable.
2. Contingent fee agreements must be in writing, signed by the client.
iv. Agents vs Lawyers –
1. Licensing requirements/Solicitation
a. State regulation of Agents – (ca/ny) require a license
i. No license – severe penalties (100-1,000/30 days – 1 yr in jail and possible criminal proceedings)
ii. No special education needed
iii. Allowed to solicit
b. State Bar – Lawyers
i. Must pass each state’s bar exam to practice
ii. Highly regulated (MRPC)
iii. Seven years of education (3 yrs of law school)
iv. Prohibited from in-person solicitation
v. Lawyers -Ethical Considerations –
1. Bound by rules of professional conduct
2. Conflict of interest considerations
3. Handling clients money
4. Fiduciary duty (unlike record labels)
vi. Lawyers – ethical issues:
1. Establishing the attorney/client relationship
a. Exists as soon as the client reasonably relies on attorney’s advice
b. Should formally establish relationship via written agreement. Written agreement should contain the following:
i. Term – can terminate at any time
ii. Scope of services
iii. Payment arrangements
iv. Billing
c. No free advice
2. Lawyers are bound by the rules of professional conduct
a. Duty of competence – MRPC 1.1
i. Legal knowledge, skill thoroughness and preparation necessary for the representation
ii. Complexity of the case, specialized nature of the matter, lawyers general experience and training
iii. Lawyers must use caution in making referrals b/c they may become liable as incompetent referrals
3. Conflict of interest considerations – Attorney’s should have clients sign a Conflict waiver to address any COI issues prior to representation.
4. MRPC 1.7
a. Entertainment Industry is typically referred to as “incestuous” because of the small circles
i. Premium is attached to “who you know.”
ii. Small number of power brokers
iii. Sometimes many in our business look at conflicts as beneficial to the parties – package deals, help a newcomer hook up w/ established individual act.
5. Multiple Client Representation –
a. A lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
i. Representation will be directly adverse to another
ii. Significant risk that representation will be materially linked by responsibilities to another client, former client, third person or a personal interest.
b. How can you represent multiple clients?
i. Have them sign a written conflict waiver
1. Must disclose potential risks and conflicts
2. must get written waiver from both clients
3. Consent must be informed consent
ii. Lawyer can represent both if:
1. Reasonably believe he can provide competent and diligent representation to each client
2. Representation isn’t prohibited by law
3. Representation does not involve claims against each other (litigation); and
4. Informed written consent by each.
vii. Merging Roles
1. General Rule is that entertainment attorneys who also act as managers/agents are still subject to the MRPC to the extent that any activities involved the rendering of legal services.
2. A lawyer may also be a manager, but must define the scope as a manager in the written agreement. This is still a very grey area.
2. Copyright Law Class 2- protecting intellectual property in the music business
a. 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)
i. Example – a record label’s royalty formula in its recording agreement.
b. Trademarks – 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.
i. The registered symbol means that the trade name has actually been registered and a certificate of Trademark has been issued from the library of congress. TM is something you can use if you filed the paperwork, it lets people know if your rights.
c. COPYRIGHTS:
i. §106 of The Copyright Act:
1. The exclusive rights to do and to authorize any of the following:
a. to reproduce the copyrighted work in copies or phonorecords;
b. to prepare derivative works based upon the copyrighted work;
c. 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;
d. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
e. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a
ished after January 1, 1978 are protected for the life of the author plus 70 years.
7. Works Made for Hire
a. Works made for hire (“works for hire”) and anonymous works are protected for 95 years from publication or 120 years from creation, whichever is shorter.
8. Copyright vs. Registration
a. When is a song copyrighted? Answer: When it is (af)fixed.
b. Fixed to what? Answer: Paper or a Phonorecord
c. What is a phonorecord? Answer: Any device that can store and reproduce sound.
9. How to Register
a. Appropriate Form –
i. SR-Sound recording
ii. PA-Songs (and other performing arts works)
b. Appropriate payment
i. ($45 by paper; $35 electronically)
c. Two complete copies of the “best edition”
i. Within 3 months of publication
ii. Only one copy if unpublished
xi. Fair Use Defense – A legal defense for using copyrighted material without paying royalties
1. Purpose
a. Provide “wide access” to copyrighted works
b. Allows for free speech
c. Encourage the advancement of learning and knowledge
2. Fair Use Defense – (defendant has the burden of proving fair use)
a. The Four Factor Test
i. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
1. The court must consider the extent to which the new work is “transformative.” The new work must add something new with a further purpose or different character, altering the first with new expression. The court must also consider whether the purpose of the new work was for or not-for-profit.
ii. Nature of the work
1. The second factor reflects a recognition that creative works are closer to the core of intended copyright protection than informational and functional works.
2. Published? Factual or creative; Least important factor.
iii. Amount and Substantiality of the Portion Used in relation to the copyrighted work as a whole.
1. This factor asks whether the amount and substantiality of the portion used in relation to the copyrighted work as a whole, are reasonable in relation to the purpose of copying.
2. No set rules. Could be 4 notes! Or one!
iv. Effect on of the use upon the potential Market for or Value of the © Work
1. This factor asks whether actual harm resulted from the defendant’s use.. And whether unrestricted and widespread conduct of the sort engaged by the defendant would result in a substantially adverse impact on the potential market for the original or its derivatives.
2. Most important consideration
3. Does the “fair use” replace sales of the original?
