Licensing Scenarios

Other Licensing Scenarios

 

 

There are many other situations where you need a license to use music. Here are several examples:

• You want to create a new song that uses samples of other songs. Even if you are using just a few notes, you need to obtain licenses through an organization like LicenseMusicNow.com. Otherwise, you will end up paying even more in penalties when the song is played in public.
• You want to play music in your lobby, elevator, restrooms, etc. You either need to obtain performance licenses from ASCAP and BMI, or you need to contract with a company like Muzak, which handles all the licensing for you.
• You want to play music in your small restaurant. You have three choices. Technically, you can play the radio. But in that case your customers will be listening to all the commercials, which they may not appreciate. You can play tapes or CDs. In that case you need to file with ASCAP and BMI for blanket licenses. Or you can contract with a commercial music services firm like Muzak.
• You are making a yearbook DVD for school, a wedding video, etc. and you want background music. You cannot legally use songs off a CD for these purposes. That forces you to look for production music -- music produced by companies specifically for these applications. The simplest example of production music is the kind of music you get when you buy sound effect files and music clips on a CD. A place like Music Box offers complete songs in many different styles.

To see how particular things can get, consider this example:

Let's say you have a cheerleading squad at your high school and you buy a CD from a place like Power Music for your practice sessions. Now you want to play the CD while your squad performs at a basketball game. The school should have waivers for ASCAP and BMI for that, but you need to make sure. If a local TV station wants to broadcast the game, there is a problem if you perform to the music because that is a retransmission of the music. Then if you want to video tape your squad performing to the music and sell the video tape, you have the same sort of retransmission problem. There are so many problems, in fact, that Power Music offers a FAQ on it. In the FAQ it says, "Over the years our writers and producers have created hundreds of songs that are available for video license. Since we own the recordings and the compositions we can grant you the license to manufacture videos with music from our catalog."

In other words, about the only time you do not have to pay to use music is when you are sitting in your home or automobile listening to the radio with your family. And in that case, the radio station paid for you to hear the music with blanket licenses from ASCAP and BMI, and you pay by listening to the station's commercials. Every other possible use of music legally requires the payment of a licensing fee.

Commercials and Film

 

If you want to use a song in a TV or radio commercial, you need a Master Use license from the label (unless you are re-recording the performance) and a Synchronization license (TV) and/or a Transcription license (radio) from the publisher.

According to the book "All you need to know about the music business" by Donald Passman, "The fees for synchronization licenses are really all over the board, and they vary with the usage and the importance of the song." For example, Passman's book mentions some fee ranges:

• Low-end TV usage (e.g. -- music is playing from a jukebox in a scene, but no one in the scene is paying any attention to the music) -- free (for exposure) to $2,000 for a 5-year license. In a film, the fee would be $10,000 in perpetuity.
• A more popular song is worth more, perhaps $3,000 for TV and $25,000 for film.
• A song used as the theme song for a film might get $50,000 to $75,000.
• Commercials fetch even more money: "a song can command anywhere from $25,000 to $500,000 plus per year. The typical range for a well-known song is $75,000 to $200,000 for a one year national usage in the United States, on television and radio."

Generally you would obtain the licenses you need through some sort of clearing organization that handles licenses on a daily basis. For example, see LicenseMusicNow.com.

How Entertainment Lawyers Work Part 4

Choosing an Entertainment Lawyer

 

If you're a musician or an actor, you probably didn't think about the importance of having an entertainment lawyer until you had a contract to sign. Once you signed, you'd be bound by the contract's terms. Suddenly, looking at those terms, you knew you needed a lawyer to look it over and make sure everything worked as much to your advantage as possible. Perhaps your agent could offer an opinion, but a lawyer would have more expertise.

In looking for the right entertainment lawyer to meet your needs, you'll want to consider the following about the lawyer or firm:

• Expertise -- Look for someone who has the specific background you need, in this case, handling contracts within the music industry.
• Experience -- Focus on finding a lawyer or firm that has years of experience in the area you need.
• Cost -- Decide which form and level of billing suits your needs best. Entertainment lawyers may bill on an hourly basis for work completed, as a percentage of the income from a contract, as a flat rate per contract or as a retainer (set fee per month). They also may use value billing to set a fee based on the size of the deal and the lawyer's contribution to it. Make sure you know about any hidden costs beyond fees, likes charges for long-distance phone calls, messenger service and photocopies.
• Conflicts of Interest -- Check to make sure the lawyer does not represent anyone who would be on the opposing side of the contract or have a close relationship with them.
• References -- Request and check references for clients similar to yourself in terms of needs and years in the business. You'll want to know how responsive the lawyer is about returning phone calls or e-mails and how quickly he can get your job done.

[sources: How Recording Contracts Work and MusicBizAcademy]
Here are some suggestions on finding an entertainment lawyer:

• Network! The entertainment industry runs on contacts, and a colleague or someone further along in his career may have used a lawyer that would work well for you.
• Use an industry database. In the music industry, for example, StarPolish offers a database of lawyers offering services related to music publishing and copyrights.
• Check ads in industry publications like Billboard.
• Contact the ABA's Forum on the Entertainment and Sports Industries or a law school's entertainment law association or publication, such as the UCLA Entertainment Law Review.

Regardless of the entertainment industry you call home, an entertainment lawyer can help you to protect your interests and move ahead in your career.

For lots more information about entertainment lawyers and related topics, check out the links on the next page.

How Entertainment Lawyers Work Part 3

Specializations of Entertainment Lawyers

 

Subtleties among the various entertainment arts call for specialization, as do the client's specific legal needs. If your band is signing its first recording contract, for example, you want an entertainment lawyer who focuses on the music industry and contracts, not a film or publishing expert. If someone has lifted some of your song lyrics, you want an entertainment lawyer with expertise in both music law and intellectual property -- and you may even need a litigator who can take the music thief to court.

One way of looking at the specialties of entertainment lawyers is to take a by-industry approach. Here are some of the areas lawyers may handle for each industry:

• Film -- Contracts with stars and other talent, labor negotiations with various union crews and employees, financial backing arrangements, distribution agreements, equipment and space rental, production liability issues, merchandising and product placement, and copyright and trademark issues.
• Theater -- Contracts with talent and crew, rental and co-production agreements, producer agreements, production liability issues, ticket sale agreements, and copyright and trademark issues.
• Music -- Contracts with record labels, managers, agents, concert promoters and concert producers; tour crew agreements and equipment rentals; recording studio rentals; music licensing and royalty agreements; and copyright issues.
• TV/Radio -- Contacts with talent and crew, production studio and network agreements, distribution agreements, broadcast licensing and regulatory issues.
• Digital -- Space and equipment costs, employee contracts, talent agreements, music and image use agreements, licensing arrangements, and copyright issues.
• Publishing -- Production contracts, author agreements, advertising and marketing agreements, and copyright and trademark issues.

Another way of splitting up the specialties to look at the type of law being practiced. Attorneys divide the practice of entertainment law into two basic categories: transaction-based and litigation-based. Transaction-based focuses on drafting and negotiating entertainment contracts, while litigation-based means resolving disputes by filing a lawsuit or though mediation or arbitration.

More specifically, an entertainment lawyer can focus on any or several of many practice areas: intellectual property, corporate law, labor law, arbitration and alternative dispute resolution, litigation, estate planning, real estate, criminal law, international law, matrimonial law, taxation and immigration.

Larger entertainment law firms are likely to offer a wide variety of these specialties. Smaller firms may be more focused on a specific area, such as writing and negotiating contracts. Litigation is often handled by a separate, specialized law firm.

Perhaps your biggest concern is finding the right entertainment attorney to help you with your needs, such as negotiating a contract with a record label. Keep reading to find out how to choose an entertainment lawyer.

How Entertainment Lawyers Work Part 2

Job Description of an Entertainment Lawyer

 

Being an entertainment lawyer may seem like a glamorous career that offers a way to rub shoulders with celebrities and up-and-coming artists. While that may be true for some successful lawyers, entertainment law is a demanding career that requires a firm grounding in legal areas like contract law, labor law, litigation and intellectual property, as well as extensive knowledge of how the entertainment industry works. Bear in mind, too, that plenty of would-be entertainment attorneys are jockeying for a limited number of jobs in the industry.

Entertainment lawyers provide legal help for artists, employees, companies and individuals involved in all areas of the entertainment industry, including film, radio, television, music, publishing, theater and digital or multimedia entertainment like video games.

This could mean helping an actor negotiate a contract with a studio, filing suit over a pirated film, ensuring that stuntmen have adequate medical coverage, overcoming an impasse in union contract negotiations, assisting a young recording artist with financial or real estate decisions, protecting a recording star from illegal use of a copyrighted song or even preventing invasion of a client's privacy [source: Lawyers.com].

Here's a list of activities that might be part of an entertainment lawyer's job description:

• Draft contracts for a client, review contracts from managers, publicists, record labels, film studios and others to make sure they're legal and fair to the client and then negotiate those contracts.
• Maintain relationships with studios or record labels and be aware of who's influential and what deals are being made in the industry. Having strong contacts can help a lawyer get a deal done quickly, while knowledge of what's being offered elsewhere can help the lawyer get the best deal for a client.
• Help clients new to the industry understand how the business works, including which types of contracts to choose, how to identify pitfalls in business deals, what performing rights they have and where to find a manager, agent, accountant or other business contact.
• Act as general counsel for established artists, helping with marketing and merchandising deals, as well as real estate transactions and tax issues.
• Help artists secure the rights to use music that other artists have written, complying with copyright laws.

[sources: MusicBizAcademy, Randy Jackson and K.C. Baker, William K. Gibson and Reid F. Trautz]
Like any other lawyer, an entertainment lawyer has spent three years earning a law degree after receiving a bachelor's degree. But an entertainment lawyer has chosen to specialize, probably graduating from a law school that offers a specialization in entertainment law. Some of the top schools are University of California at Los Angeles, University of Southern California, Stanford University and New York University. If you're interested in this type of law, look for a school that offers entertainment law courses and has an entertainment-focused law review or association [source: Top Law Schools].
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After finishing school, an entertainment lawyer usually works for a law firm specializing in this type of law. Most of these firms are located in Los Angeles (music, film and television), New York (music, publishing and theater) and Nashville (music). Young attorneys start as associates, and partners direct them in writing contracts and assisting with negotiations. Because of the limited number of spots, the large number of available attorneys and nature of the entertainment industry, moving up often depends on the relationships and contacts that an attorney can make [source: Mark Litwak's Entertainment Law Resource].

Interning in an entertainment firm before law school and during summers, volunteering with a pro-bono organization like California Lawyers for the Arts and joining groups like American Bar Association's Forum on the Entertainment and Sports Industries can all help a lawyer make industry contacts.

Not all entertainment attorneys have the same job description. Let's look next at the different specialties that entertainment lawyers can have.

How Entertainment Lawyers Work Part 1

Rapper Nas (Nasir Jones) delayed an album's release for months while he lobbied to have the n-word used as its name. But even with seven previous platinum albums and no illegality noted for his chosen album title, which has been used before, he couldn't get the concept approved. He ended up calling the album "Untitled" and using cover art with a graphic allusion to slavery [source: USA Today].

A writers' union strike crippled the 2007-08 television season, leaving viewers with less to watch, networks scrambling for offerings and cancellations of series that didn't have a chance to show their stuff. During the next summer, a possible actors' union strike threatened to have a similar effect on the following TV season as well as derailing movies that are planned or in production [source: Associated Press].

A lawsuit by Viacom against Google, parent company of YouTube, accused the video site of copyright infringement for hosting videos lifted from copyrighted TV shows. But with movie studios, record labels and individual artists using YouTube to promote their latest offerings, how can YouTube weed out piracy dropped on the site by users? And what is its obligation to do so? [source: CNET]

These three examples show some of the work that an entertainment lawyer may do. All of these -- research on a potentially incendiary album title, contract negotiations and a copyright infringement suit -- require experts who know the law and can protect the rights of companies, unions, artists and the public. But lawyers do plenty more in all areas of the entertainment industry, sometimes even acting as agents helping artists manage their assets and careers.

You may be wondering: What else does an entertainment lawyer do? What areas of specialization are available? How does someone become this type of lawyer? And, if you are in the music, TV or film industry, how do you select the right entertainment lawyer for your needs? Read on to find out.

EXCLUSIVE: Everything You Need To Know About the Music Business

Keith Harris is a former general manager of Motown Records, a veteran artist manager [he represents Stevie Wonder] and director of performer affairs at collection society PPL [www.ppluk.com] which sponsored this panel.

In this talk he excels at meeting the challenge to sum up Everything You Need To Know About The Music Business in under an hour.

The moderator is Wide Days co-organiser, Keith Harris.
 
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