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Entertainment Law
West Virginia University School of Law
Cummings, Andre Douglas Pond

ENTERTAINMENT LAW
 
CHAPTER 14: MUSIC BUSINESS RELATIONSHIPS
 
I.                   Music artists should have:
a.       Supportive band mates
b.      Booking agent: schedules live appearances to help the band gather a following which in turn helps the band attract record companies.
c.       Music lawyer: most bands cant afford to hire a lawyer early on
d.      Personal manager: helps the artist with day to day activities, can help the group find a lawyer, agent and record deal
e.       Business manager: endorsements, etc.
 
II.                A&R Executives
a.       Artist and Repertoire: go to clubs and look for the next hot act; listen to demos; execs are usually very young (18-25 year olds)
b.      A&R Execs must know:
                                                              i.      What the record company is looking for
                                                            ii.      Whether the artists ahs a chance at being accepted by the company
                                                          iii.      How to screen talent for the record company
1.      look for unique vocal quality
2.      note: demos should begin with the artists strongest material
 
III.             Record Companies
a.       After the company signs the group to a contract, the group gets a budget to produce an album. ($500,000 to $1 million dollars)
                                                              i.      The money made from an album is divided by points (1-100).
                                                            ii.      The artist usually gets only 7-8 points per album sold (even group artists just have to split the 7-8 points)
                                                          iii.      Huge artists (Madonna, Prince) can negotiate for more points.
b.      The company must forecast sales (via the projected listening and music buying tastes of the public).
IV.             The Process
a.       Artist signs a contract with the record company
b.      Artist given a budget to produce the album (advance for living expenses, producers, studio time, engineer, vocalists, etc.)
c.       Producer (director) and engineer (sets up microphone, adjusts recording levels on the soundboard) are hired
d.      Recording process begins
                                                              i.      Entire group plays the song together and the engineer records (on a two inch tape) the various instruments to use a reference for the rerecording of the tracks.
                                                            ii.      The vocalist will sing the song so the musicians can hear the vocals as they lay down the final tracks. “Scratch Vocals”
                                                          iii.      Each instrument is recorded separately to be used on the final mix because if they were all recorded together one instrument may bleed into another instruments track, plus its easier to fix a mistake.
1.      a good engineer can “punch” in the correct note to make the group sound perfect
                                                          iv.      It takes days to record the vocals and instruments for one song.
                                                            v.       After recording the song on a two inch tape, the various tracks are mixed down onto a two-track, quarter or half inch tape.
                                                          vi.      This new tape is the version submitted to the record company for use in the manufacturing process.
                                                        vii.      While the CD’s are being pressed, the artwork and liner notes are prepared.
                                                      viii.      The entire process from signing to recording, to pressing to delivery and sales can take six months to two years.
e.       Recording a rap CD is easier than a rock CD (drum machines, etc.)
                                                              i.      Why is sampling such an important part of hip-hop history?
1.      Started in the streets in NYC
2.      Create sounds with no money
3.      Rap right on top of samples
4.      Rap song is usually only 6-7 tracks
V.                Touring
a.       After the album is released the artist must tour
b.      Benefits of going on tour
                                                              i.      Establish a following/fan base
                                                            ii.      Get discovered by A&R and the record company
                                                          iii.      To support the record album
                                                          iv.      Earn money and continue rock and roll lifestyle
 
VI.             Band Partnership Agreements
a.       Band partnership agreements are the most important documents that lawyers can prepare for a group
b.      Cover the organizational issues such as governance issues and the splits of the profits and losses, songwriting credits, publishing ownership, how to add/remove band members, breakup of the band, who gets to use the name, etc.
c.       Kassbaum p. 646
                                                              i.      Steppenwolf case
                                                            ii.      The court held that Nick St. Nicholas can continue to refer to himself as “Former member of Steppenwolf” based on
1.      contractual language: looked to the entire contract for the intent; more viable that they just didn’t want him to have a group named Steppenwolf rather than not wanting him to EVER use the name in ANY manner – even as a resume
2.      Lanham act: using it in the manner he did reduces confusion rather than making it seem as if he is performing as the group; “formerly of” is smaller on the album cover
                                                          iii.      Lesson: you need to explicitly say what you mean in these K’s.
1.      Always include how the group can break up
2.      Buy/sell provision (who gets the name)
 
9.08.05 Read pp. 682-695 text; Guns N’ Roses handout
 
Recap – Lessons from Steppenwolf:
 
Take care of all the contingencies: band breakup; solo albums, etc.
 
Far Out Productions, Inc. v. Oskar p. 652
 
Eric Burdon & War
Burdon lost interest. Left the group. So, who would own the trademark and continue to be able to use “War?” Far Out Prod. (Burdon’s production company) or the remaining members? Despite the convoluted presentation of the case why did our textbook authors include this case in our book? To demonstrate the imporantce of these early agreements – they must be well drafted.
 
Issues to consider when drafting a band organization agreement:
Determine the band’s organizational structure (songwriting credits, governance issues, splits of profits and losses, publishing ownership, band name ownership, copyright ownership of the music)
Determine the business entity that you are going to form under (LLC, Corp.)
What to do in the event that a band breaks up or a member leaves (how to remove members, add members, and who gets to use the name when the band dissolves)
 
Note Cases
 
Boogie Kings v. Guillory: just being the leader of the band doesn’t mean you have rights in the title
 
Grondin v. Rossington: Lynard Skynyrd plane crash; remaining members entered into a non-use agreement; widow sued because the group was touring; held that because it was a tribute tour the agreement wasn’t violated
 
Brother Records, Inc. v. Jardine: “Beach Boys Family and Friends” is a violation; there may be confusion by patrons (unlike Lynard Skynyrd case where the plane crash was highly publicized). He also admitted to using the trademark and “Beach Boys” was more prominently displayed.
 
Classical Music
 
Challenge today is that the audience is older, stuffy stereotypes, etc.
Unions
 
BAND MANAGEMENT AGREEMENTS
 
A manager is usually a friend of the band.
A connected manager is able to get the group in touch with lawyers, industry insiders.
 
Ahern v. Scholz p. 667
 
Boston’s debut record sold 11 million records (this was huge)
Scholz is an original band member; primary songwriter
 
Ahern does something very smart in the FMA: he negotiates royalties for the third album
 
What likely precipitated the split between Ahern and Scholz?
It’s all about the money. Ahern was likely taking a large percentage of the

filed suit saying that the video was his work entirely.
 
Why was Corgin so concerned about the video being published nationally?
He was concerned with the audio quality. Didn’t want early failures to be marketed.
 
Know the rule on 1st full paragraph on p. 708. Court cites Aalmuhammed case. (A wrote parts of the script and was a consultant for Spike Lee’s “Malcolm X.” Claimed ownership. Court said no. 3 factors).
 
Morrill argues that he had control over the work. Court says, Morrill missed the primary purpose of the work: shooting a music video.
 
Court also says that in his own admissions, Morrill indicated that it was intended to be a joint work. “…our early collaborations have certain marketability.” Court also rejected Morrill’s “sole possession” argument. Court also says director does not equal author.
 
Finally, there is the copyright. Morrill registers it 12 years after video was made. Standard protection for copyright within 5 years – so court has discretion about the weight to be accorded to a copyright registration.
 
What is the difference between a sound recording and a musical composition?
Musical composition is underlying creativity and the sound recording…
 
Rules regarding sound recording:
Rule 2: p. 711 “In the case of a sound recording the law is clear…” (add this quote)
Rule 3: “In the case of a music video…”
 
Held: Corgan is a joint author.
           
 
Copyright Act Changes: Give artists more rights
 
The 1976 amendments allowed artists to terminate grants after a specified period of time.
The 1909 copyright good for 28 years and then can renew for 28, now changed to lifetime plus 75 years. (Huge for artists and their heirs).
Public domain means free to everyone – no licenses needed.
 
Framework of How Mechanical Licenses are Granted:
Typically, if you want to cover a song, go to ASCAP and BMI to find out who owns the copyright of the song. Contact the copyright owner and ask for permission to use or cover the song (mechanical license). Why would an artist be willing to allow license? $ By federal law there is a minimum royalty amount (8 cents per record, per song). Most require that you make the payment up front before you sell any of the records. Then there is a follow up report to see how many you made and sold.
 
Basic Overview of Copyright
 
Sources of Copyright Law
US Const Art 1§8 cl 8
1979 copyrigth act 17 usc §101
 
General Rule copyright law protects against the impremisssible copyring of a protected literary/artistic expression
 
Exclusive rights of a copyright owner §106
Copyright owner has exclusive rights to….
1 reproduce copyright work
 
(more here)
 
Limitations on the exclusive §106 rights to sound recordings
 
Copyright protection requirements
Work must be (1) an original (2) work of authorship fixed on any tangible medium of expression.
 
Work must originate with the author independely created (not copied) and a minimum level of creativity.
 
Literary works (computer programs too)
Musical works including composionts
Dramatic works including accompanying music (RENT)
Pantomimes choreography
Pictoral graphic sculptural works
Motion pictures and other audiovisual works
Sound recordings
Architectural works
 
General areas of copyright ownership in music
Sound recording (recording engineer)
Lyrics/Songwriting (songwriter)
Song Performance (musicians)