What are the main deal points in a music producer’s agreement?

Music Producer Agreement Music Law Intellectual Property

What are the main deal points in a music producer’s agreement?

A music producer or the producer’s “loan-out” corporation may sing a deal with artist, a production company, or a record company. The producer’s job is to help create and deliver quality master sound recordings. A music producer’s agreement may be for a single song (master), or may cover an entire album. Some of the following key terms may be addressed:

(1) Responsibilities: In your music producer’s agreement, make sure to clarify what is meant by “production.” For example, does it include selecting the songs, selecting the instruments and vocals, and help in writing or arranging songs, etc.

(2) “All-in” Deal: An “all-in” record company agreement is in which the artists is responsible for hiring the producer. In this case, the producer will want the artist to be responsible for any “overages” in the recording budget. Try to limit your liability for overages to only those caused by you (the artists), and not caused by or within the control of the producer, engineer, or recording studio.

(3) Producer Royalties: Producers generally charge royalties (“points) which range from 2.5% to 3% of suggested list retail price (SLRP) of an album, depending on the producer’s reputation, skills, and track record. For beginning artists, you can usually get a new (unestablished) producer to charge from 1% to 2% of records sold. Hot (established) producers can charge from 2% to 4%, while superstar producers can demand from 5% to even 6%. A producer’s royalty rate may also be increased at specified sales plateaus (e.g., an increase of 3% to 5% after 500,000 record sold.)

(4) Record One Royalties: Unlike artists, producers are customarily paid on all records sold, without recoupment of recording costs. These are called “record one” royalties because they are paid from the first record that is sold. Try to strike this language, if you can. If you are unable able to avoid a “record one” clause, you may be able to negotiate a better deal in terms of when those record one royalties will be paid.

(5) Other Royalty Deductions: As an artist, you may be under contract with a record label whose recording agreement provides for various royalty deductions, exclusions, and limitations. Producer royalties are generally calculated on the same basis as the artist, including the same deductions for “packaging”, “CDs”, and “free goods.” Moreover, producer royalties should also track the lower royalty rates paid to the artist in the same proportionate reduction (e.g., lower royalties from foreign, budget, and mid-price sales.).

(6) Producer Advances: Like artists, producers also get “advances.” The amount of the advances varies (like the points), depending on the stature of the producer. New (unestablished) producers can get anywhere from free, to $2,000 – $3,500 per master (song). A mid-level producer can charge anywhere from $3,500 – $7,500 per master. And superstar producers can get up to $10,000 – $15,000 per master, and sometimes even higher.

(7) Masters: Take time to commit in writing what each others’ rights are vis-a-vis the finished product, i.e., the masters and CD’s. Obviously, ownership of the masters should be in the artist.

(8) First Right of Refusal: Sometimes a producer will want to do the first re-mix and/or recording of the masters that he/she helped to create. If you want total creative control over your masters, avoid this.

(Reprinted with permission from Ruben Salazar, Esq.)

Read more to view related video clips.

Continue reading “What are the main deal points in a music producer’s agreement?”

Welding Rods Side Effects – Parkinson’s & Cancer

Welding Rod Side Effects Drug Toxic Chemicals

Free Case Evaluation From An Experienced Drug Liability Attorney.

Welding Rods Side Effects – Parkinson’s & Cancer

Welding Rods contain manganese, which is released into the air in fumes and dust when the rods are heated. Exposure to manganese fumes or dust for 2 months or more can cause Parkinson’s disease, or a similar condition called Manganism. The symptoms of Parkinson’s disease are:

Tremors or trembling in the hands, arms, legs, and face

Stiffness or rigidity in arms and legs

A fixed gaze or blank face

Slow body movements

Changed gait caused by abnormal muscle tone (dystonia)

Difficulty walking and with coordination and balance

Slurred or hesitant speech

Depression

Dementia

Suffered harm from Welding Rod exposure? You may have a lawsuit. Click here, for a top rated law firm to evaluate your legal rights.

Manganism can sometimes be reversed if caught in the early stages, but can’t be cured if it progresses to later stages. Anyone experiencing the early stages of the symptoms listed above should seek medical help immediately. Other warning signs include:

Inability to perform routine tasks as quickly as usual

Fatigue

Short-term memory loss

Insomnia

Headache

Muscle cramps

Loss of appetite

Anxiety

Diminished libido or impotence

“Locura manganica” (manganese madness), characterized by aggression and an inability to control emotions

Toxic doses of manganese sometimes cause immediate symptoms, including:

Dizziness

Nausea

Vomiting

Upset stomach

Dryness or irritation of nose, throat, and eyes

Fever

Chills

Body Aches

Metallic taste

Asthma-like symptoms

Other side effects of manganese inhalation or absorption include:

Bronchial asthma

Lung fibrosis

Pneumoconiosis or “siderosis”

Lung and nasal cancer

Ulceration or perforation of the nasal septum

Respiratory difficulty

Lung cancer

Anemia

The fumes and dust produced by heating welding rods produce other chemicals that are toxic in high levels and can cause serious side effects. For example both soluble chromium compounds and insoluble nickel are known to cause cancer in humans. Chromium dust can cause skin ulcers and eye burns. Both silicon and molybdenum fumes and dust can cause irritation to the respiratory system, eyes, and skin.

If you’ve been exposed to toxic fumes and dust from welding rods, you should see a heathcare provider to be checked for possible welding rods side effects. If you or a loved one has already been injured by the toxic effects of welding rods, you might be able to recover damages. You should have your case evaluated as soon as you can. See Welding Rods Attorney and Lawyer – How to Hire for information on finding a welding rods lawyer.

Check out the following articles for more information about Welding rods, filing a Welding rods lawsuit and finding a Welding rods attorney.

For more information about welding rods, see Drug Overview: Welding Rods Side Effects and Claims

To find out more about warnings, see Welding Rods Side Effects and Risks

For more information about welding rod updates, see Welding Rods Information and Warnings

If you would like to learn more about welding rods lawsuits, see Welding Rods Lawsuits, Litigation & Lawyers

To learn more about welding rods attorneys and how to find one, see Hiring a Welding Rods Attorney and Lawyer

Suffered harm from Welding Rod exposure? You may have a lawsuit. Click here, for a top rated law firm to evaluate your legal rights.

Read more for related video clips.

Continue reading “Welding Rods Side Effects – Parkinson’s & Cancer”

What are the main deal points in a recording studio agreement?

Recording Studio Agreement Music Law Intellectual Property

What are the main deal points in a recording studio agreement?

If a recording studio agreement is being considered, there are certain key issues that should be addressed and clarified. Some, but not all, include:

(1) Parties to the Recording: Obviously, all parties expected to be involved and paid in the recording process should be expressly identified or dealt with in the studio recording contract. For example, if there is a band agreement, who has power to sign the studio recording agreement?

(2) Studio Rates: Studios generally charge on an hourly basis. Determine in advance what they will charge you per hour, and be sure to tell them how many CD’s and cassettes you plan to press. Also advise them how long you expect to take to record your demo.

(3) Studio Hidden Costs and Surcharges: Ensure in advance exactly what you are being charged for and what is (and is not) included. Sometimes studios charge extra for engineer or producer fees, mixing and mastering , drum set-up time, etc. Also, studios generally charge different hourly rates for recording, mixing and mastering services.

(4) Rate Reductions: Sometimes you may want to ask for certain “discounts.” For example, if you lay down your own tracks with your personal engineer or music producer, those service charges should not be included. And, try to get a exclusion or reduction in the hourly studio time price for setting-up your own drums.

(5) Method and Manner of Payments: Clarify in writing if you need to pay the studio up-front, or in payments. Determine if the studio gets paid an “all-in” payment, or whether the engineer or music producer and paid separately.

(6) Refunds: If you have to pay the full studio recording fee in full and in advance, be sure to provide for a partial reduction in the studio fees if the project is not completed due to reasons beyond the control of the parties.

(7) Indemnification: This is a legal clause in a contract that many studios insist on to help protect them from costs of lawsuits and attorney fees. Studios often require you to guarantee them against any copyright infringement suits.

(8) Recording Schedule: Put down in writing a time-frame for the completion of your project. Inquire what other recording commitments the studio and/or engineer has that may potentially interfere with the timely recording of your production.

As in all music-related agreements, all provisions are negotiable, but largely dependent on your clout. Whenever possible, a music lawyer should be consulted before any recording studio agreement is signed.

(Reprinted with permission of Ruben Salazar, Esq.)

Read more to view related video clips.

Continue reading “What are the main deal points in a recording studio agreement?”

What are the main deal points in a recording agreement?

Recording Agreement Music Law Intellectual Property

What are the main deal points in a recording agreement?

If an exclusive recording agreement is being proposed, there are certain key issues that should be addressed and negotiated, if possible. As in all music-related agreements, all provisions are negotiable, but largely dependent on your clout. The following are the most important:

(1) Term: “Term” is the length the recording artist is required to provide personal service contract. The artist should watch out for the “open-ended” term provisions, which allows record companies to define a “year” as “8 months after delivery of the minimum recording obligation, whichever is later” or similar language. The artists should attempt to limit the initial fixed term to 12 (not 18) months.

(2) Artist’s Recording Commitment: This is the provision specifying how long an artist must exclusively record for a certain record label. It obligates the artist to record and deliver a certain number of masters to the record company. If a long term and substantial albums are sought by the record company, the artist with sufficient clout should ask for “promotional” provisions, such as guaranteed release, promotional budget, advertising, support, publicity, and/or video. The artist should also try to limit the delivery commitment to one or two albums per five-year term. If the artist cannot limit the recording commitment to a comfortable number, ask the record company for broad and favorable “suspension” terms.

(3) Record Companies Commitments: The artists should ask for a “guaranteed” release clause, defining “recording” to include “releasing.” The artists should also avoid “minimum commitment” language.

(4) Delivery: “Delivery” of a master recording at certain times is required of the recording artist by every recording contract. Failure to deliver product on time may prevent the record company from timely manufacturing and selling records. This may affect the artist in a number of ways, including extending options dates, expirations dates, and payments of advances.

(5) Suspension and Extension: These clauses are usually triggered by some failure of the artist to record or the artist committing an immoral act. Generally, care should taken by the artist to avoid automatic “suspension” clauses for non-delivery or late product. Instead, request that the suspension applies only if the non-delivery was the failure of the artist and/or that it is excused if the record company bars the artist from recording.

(6) Injunction and Equitable Relief: Record companies try to prevent the artist’s breach of a recording contract by restraining the artist from recording elsewhere. They do this by inserting a clause stating the artist’s personal services are “unique” and “special” and exclusive to the record company. Recording agreements with this language entitles the record company to injunctive and other equitable relief. The artist should limit this to provide that the record company is only entitled to “seek” injunctive or other equitable relief.

(7) Royalties: The “base royalty rate” is the gross or starting royalty for “regular full-price sales”. It is negotiable, and varies from artist to artist. Generally, it may range from 5% to 10% for a new unknown artist, to 15% for a hot new artist in a bidding war, or up to 18% for a seasoned recording artist. The base royalty rate is usually severely reduced by various other royalty provisions and definitions.

The packaging deduction is another common provision. Record companies usually deduct what is known as a “container charge”, “packaging deduction” or “jacket charge.” This is the single largest reduction of the base royalty percentage and is usually non-negotiable.

An artist may also rarely avoid a “free goods” clause; this allows the record company to give away free CDs and tapes to radio and retailers for promotional purposes that can result in as much as a 15% reduction on the base royalty rate.

Royalties from the sale of CD’s are often computed by many record companies on the basis of less than 100% of the sales. For example, royalties for CD’s are commonly calculated on the basis of only 85%, or even as low as 75% of sales. Try to avoid this historical practice. There is really no justification today for this reduction since the price of making CD’s is negligible compared to other formats.

Record club royalties are usually reduced by 50%, and are further calculated on the basis only 85% of sales. The right artist with sufficient clout may be able to ask for 100% sales on record club royalties, and should also place limits of freebies.

There are reductions for foreign royalties. For example, because of extra costs involved with over seas distribution, the royalty on foreign sales of records is usually reduced to one half (½) of the normal domestic rate.

And, if possible, try to insert a provision that accounts for countries with blocked currency or funds. Some countries require royalties remain in their countries or at least be spent in their country. To be protected against these blocked royalties, the artist should negotiate a clause that requires the deposit of these blocked royalties in the name of the artist.

(8) Controlled Compostition Clause: Mechanical royalties are paid by the record company to the artist based on US sales of records. Under copyright law, there is a statutory minimum. However, under the so-called “controlled composition clause”, or “reduced rate, ” a record company usually gets the artist to take a negotiated or reduced mechanical license rate. There are several types of reductions in your statutory rate.

A. The rate is reduced by percentage; instead of 100% of the statutory US rate. The mechanical rate is commonly 75% of the minimum statutory rate, as of one of the following dates:

(1) commencement of recording;

(2) date of delivery;

(3) date of initial release; or

(4) date of sale.

Obviously, the latter date is more advantageous to an artist, as the statutory rate may go up from the date of recording to the date of sale.

B. The rate is reduced further to a certain number of songs. Thus, the “rate” is usually limited to 10 to 11 songs per record, even though you may have 15 songs on the album.

C. The reduced “x 10 min stat” rate is also further reduced depending on the configuration (format). Thus, a typical reduced mechanical license rate would be: 10 songs x 75% rate on LP’s, 5 songs x 75% on EP’s, and 2 songs x 75% rate on singles.

D. Mechanicals are payable only on records for which record royalties are payable, which usually means no payment on “free goods” and promotional copies.

E. There is usually a further reduced rate for secondary markets, such as for record clubs sales, budget lines, and sometimes mid-priced records. And, there may also be special treatment for multi-record packages. There is also a special rule regarding “Greatest Hits” or other re-releases.

(9) Advances: Royalty “advances” are basically pre-payments of estimated royalties. They are non-refundable but recoupable, meaning they can be paid back to the record company from artist’s earnings only. They come in different forms, the obvious being an advance payable upon execution of an exclusive recording agreement.

(10) Reserves: Currently, most record companies limit returns to 20% to 22% of records shipped. Because record companies do not know how many records will be returned by retailers, they compute mechanical royalties based on net sales “less returns” so as to avoid any overpayment of royalties. They maintain what is known as a “reserve” against future returns. The reserves is a percentage of gross sales of a record. These reserves may range from 30% to 75%. Since most record companies are not going to accept more than a 22% return privilege from retailers, the artist should try to limit these to “reasonable” reserves, not to exceed a certain percentage (e.g., 20% to 25%), and include a specific liquidation clause ensuring full payment after a certain period of time (e.g., within three or four accounting periods.).

(11) Cross-collateralization: This clause should definitely be avoided. A cross-collateralization clause compromises the song writer’s otherwise independent royalty income. Under this clause, the record company is allowed to recoup mechanical royalty advances from sources other than from the actual sales of the record in question. For example, if an artist owes the record company for unrecouped mechanical royalties from LP1, the record company can use sales from LP2 or even publishing income to get paid. This obviously substantially reduces and sometimes eliminates the likelihood that the artist will receive any royalties. This clause is never called by its name. It is usually recognizable by the term, “all agreements between artist and record company heretofore or hereafter entered into shall be deemed to be one accounting unit.” Always try to get these clauses removed from the recording contract.

(12) Accounting: This is the provision that tells the artist when he/she gets paid. Record companies usually pay semi-annually (e.g. a specified number of days after June 30 and December 31). Others account on a quarterly basis, every three months.

(13) Audit: An audit provision allows the artist to contest and investigate a royalty dispute by looking at the record company’s books. Most audit provisions limit the audit period to and require the artist to actually pay for and use only a certified public accountant. In order to deter vexatious or litigious artist, many record companies also place restrictions on how may audits can take place in a give time period. Some agreements also exclude manufacturing records from the audit. The artist should try to include a provision whereby the cost of the audit is paid for by the record company if the audits reveals a substantial underpayment of royalties (e.g. a minimum of a 10% variance.) There is usually an express limitation on the period the artists may object to or question a particular accounting statement. The time to object will vary from 90 days to 3 years or more.

Whenever possible, a qualified music lawyer should be consulted before any recording agreement is signed. With the right counsel and bargaining power, you should be able to land better deals.

(Reprinted with permission from Ruben Salazar, Esq.)

Read more to view related video clips.

Continue reading “What are the main deal points in a recording agreement?”

What are some of the main deal points in a music publisher’s agreement?

Points Music Publishing Agreement Music Law Intellectual Property

What are some of the main deal points in a music publisher’s agreement?

Most of the various types of music publishing contracts contain similar basic paragraphs in common cornering the advance, royalty payments, copyright ownership, and warranties and representations. These are the key issues that should be addressed and clarified.

(1) Term: The “term” is the length of the agreement. The duration can be based on calendar (“contract years”) years or on albums (“LP’s”). For example, the contract year term in a staff writer deal is usually one year with a certain number of options. Another frequently encountered contract year term would be the longer of 12 months or until a specified number of songs have been delivered. An LP-based term is based on the albums written by the composer, not on years. While recording agreements with major labels usually range from 5-8 years, co-publishing agreements are shorter, only about 3 to 4 years in duration.

(2) Territory: While it may be possible for some established writers to limit the publisher’s rights to certain territories by way of an “admin deal,” a “worldwide” territory is common for single-song contracts and “co-pub” deals. This allows the publisher to maximize its earnings on your songs by either adding it to the songs already in their subpublishing agreement, or by assigning the songs to various subpublishers around the world.

(3) Scope & Compositions: A co-pub deal can be for a single composition, an album, or an entire catalogue. The deal can include past, present and future songs. The “scope” clause specifies which songs are part of the publishing deal by expressly defining “composition” in a certain manner. It explicitly identifies in the body of the agreement which compositions will be included and excluded. If you are the writer, it is more beneficial to try to exclude previously released songs and limit the scope to songs written during the term of the publishing agreement. If existing songs are required, try to get a higher advance. This compositions clause may also determine if the writer has the right to collaborate in writing the songs and, if so, how the collaborative works are to be co-owned/co-administered.

(4) Advances: An “advance” is a sum of money paid by the publisher to the song writer for conveying to the publisher copyrights to a song or a collection of agreed songs. The royalty advance is frequently the most important issue to the writer. The only reason a writer would ever want to convey his/her copyrights in songs would be in return for money and to share in the future royalties from the songs. Therefore, if a publisher ever asks you for money for your own songs, it is not a genuine or legitimate publisher. A publisher should always offer you money to own or administrate any part of your songs, unless it is small indie publisher with no money. The amount of the advance is based on the degree to which the publisher believes that it can earn royalty income off your songs through successful exploitation. If the publisher believes your songs are going to be big hits, it may offer a lot of money. If not, the advance will be commensurately less. Market forces also often drive up the level of advances.

The advance is usually “nonrefundable and recoupable.” Advances are “nonreturnable” because if the writer does not earn any royalties, the writer need not pay the advance back. “Recoupable” means if the writer’s songs generates sufficient royalties to pay back the advance, the publisher gets to “recoup” its advance. Once the writer is “recouped”, all additional income collected is split between the writer and the publisher in accordance with the agreed share. The only song writer royalty a publisher cannot recoup is income form public performances.

Advances may be contingent or automatic. For example, an advance may be based immediately upon signing the publishing agreement (“on execution”). Alteratively, an advance may be paid when a single song or album reaches certain sales or chart positions.

An advance is payable usually as a flat sum, e.g. $25,000. Or, it can be paid out as a per centage (%) of earnings on previous albums, with minimums and maximums (“min-max’s”).

(5) Delivery: In return for the royalty advance , the song writer must “deliver” a certain amount of musical compositions during the term. Where substantial advances are involved and the number of compositions is specified in the term, a music publisher may often insist that the compositions be released on a record in the US by a “major” record label.

(6) Ownership: The ownership of the copyright is perhaps one of the most important terms in a publishing deal. Under a single song agreement or ESWA deal, the publisher typically acquires 100% copyright ownership, worldwide, for life. Under a typical co-pub deal, the writer becomes a “co-publisher” with the music publisher on a 50/50 split, but the publisher has exclusive administration of the songs throughout the world. No ownership rights are granted in either admin, collection, or subpublishing agreements.

(7) Royalty Splits: The division of royalty income is just as important as ownership of the copyrights. In a single song deal, the royalties are usually split 50/50 between the writer and publisher, except for print income for which the writer usually receives 5¢ to 10¢ per copy sold. Similarly, under a typical “copublishing deal, there is usually a 50/50 split, which becomes a “75/25 deal.” Under this deal, the co-publisher-writer gets 100% of the writers share of income, and 50% of the publisher’s share, or 75% of all income. If an admin or collection deal is possible, the royalty splits are usually 85% to the writer, 15% to the administrator. Sometimes, it is possible to negotiate a more favorable split in a co-pub or an admin deal once the writer has been recouped, or reaches certain pre-determined levels of income and success.

The calculations of your royalty splits will also be dependant on whether your royalties are calculated on an “at source” or “receipts” basis. As a song writer, always try to get an “at source” deal to maximize your income.

Print royalties are usually paid on the basis of “net paid sales”, which means on gross shipments, less returns, for which the publisher received payment.

And, remember, no payment of royalties is paid to either the publisher or the writer for promotion copies of your songs.

(8) Administration: In exchange for giving you an advance against future royalties, the music publisher will be conveyed the writer’s “administrative rights.” This clause grants the music publisher the right to control and exploit your composition. Publishers do this by granting mechanical licenses, synchronization licenses, and print rights. Additional provisions allow the publisher to collect the money from the rights that are granted to third parties. There is usually an “administration” fee charged by the administrator/publisher. Frequently, the admin fee is 10% to 25%. This fee is usually deducted off the top of either the gross receipts from the compositions or from the gross publisher’s share of income.

(9) Costs: The deductions from gross royalty receipts will often be the subject of negotiations. Obviously, as the writer you will want the music publishers to absorb as many fees as possible, For example, ask your publisher to waive fees charged to the publisher by Harry Fox Agency or CMRRA. If they do not agree to this, try to avoid the middle-man charge by having the music publisher agree to license directly to affiliated record companies, or perhaps to only the “majors.” Other expenses that are negotiated are the copyright registration fees and the costs of lead sheets and demos, etc.

(10) Restrictions:There are a number of creative rights that a writer may choose not to convey to the publisher, and for which the writer may want to retain prior approval. Sometimes a writer can place limitations on the right to use his or her name and likeness (right of publicity). For example, a writer may insist that his songs not be used commercially in conjunction with tobacco or alcohol companies, feminine hygiene products, etc. If this restriction is allowed, the publisher will usually insist the writer must regularly supply the publisher with approved photographs and bios, and will want to use any materials approved or deemed approved for use by the writer’s record company. Or, a writer may not want any translations, adaptations or arrangements of the songs without prior approval. Often a writer who is also a recording artist may want a clause not allowing the publisher to issue “first-use” mechanical licenses with out the writer’s approval. This restriction is usually limited for periods of 6- 9 months, and applies only where the writer contemplates recording the song. Other restrictions could include limiting the publisher from commercially exploiting any demo recording, or from issuing mechanical licenses “below rate.” Another provision would be to preclude any synchronization licenses without approval, or no use of the title of a song on any film/TV/stage production without writer consent. A writer can sometimes also limit the publisher’s right to settle copyright infringement or other lawsuits against the writer without the writer’s consent. If you have sufficient clout, you may even restrict your “grand rights” and “merch rights”, so that a publisher cannot (without your permission) use your songs in a theatrical dramatization, or cannot license you songs on any merchandise.

(11) Reversion: Under US Copyright laws, the length of time a music publisher is allowed to retain ownership of and/or administrative rights to the post-1978 copyrights acquired during the duration of the publishing agreement is thirty-five years. At the end of the 35-year term, the copyrights “revert” back to the writer. Thus, the term, “reversion.” The provision that specifies the writer’s right to regain the copyrights is called a “reversion clause.” Sometimes a writer can negotiate a reversion clause that allows the copyright to revert sooner than under normal circumstances.

A reversion clause may be negotiated where the publisher fails to pay the royalties properly or on a timely basis. In the past few years, a growing trend has emerged with some music publishers in co-pub deals to agree to return copyrights to some leveraged writers after 25, 15 , or even 5 years. Alternatively, reversion may occur the later of “term plus x amount of years.” If you cannot get a reversion clause based on years, try to get one based on your performance.

(12) Costs of Litigation:As in many recording agreements, there are often “Warranties,” “Representations” and “Indemnification” clauses in publishing agreements. Under these provisions, the writer promises that all the songs on your albums are original and agrees to reimburse the publisher in case they are found not to be originals. Similar “warranties” and “indemnification” clauses exist in the recording agreements between the artist and the record company. At a minimum, try to avoid or limit the indemnification clause, under which a writer agrees that if the music publisher is sued for copyright infringement, the writer agrees to reimburse them for all their court costs, legal expenses and attorneys fees. Instead, try to get provisions that obligates the publisher to bring all necessary litigation in order to collect your monies and/or to prevent or cure infringements. Ask the publisher to advance and absorb all costs of litigation against third parties.

(13) Audit:Typically, publishers send royalty payments semi-annually (twice a year) at six-month intervals, usually within 45 days after the end of each six-month period. This means if the music publisher pays based on a calendar year, the writer should be paid in about mid-August and mid-February. To protect the writer, there should be an audit clause which allows the writer (or his/her financial representatives, such as a CPA, accountant, and/or lawyer) to examine and inspect the music publisher’s royalty statements and books at certain times to make sure royalty payments are accurate. Insist on one. There are usually restrictions imposed in audits clauses as to the times and frequency of audits. Try to get a longer “contractual statute of limitations” on audits and law suits, instead of the short ones usually proposed. Ask for a right to inspect the statements, books, and records 2-4 times per year. Ask for the right to audit licensees directly. In case an underpayment of royalties is found after an audit, try to include a provision that ensures your audit costs will be reimbursed, in whole or in part.

Whenever possible, a qualified music lawyer should be consulted before any music agreement is signed. With the right counsel and bargaining power, you should be able to land better deals.

(Reprinted with permission from Ruben Salazar, Esq. )

Read more to view related video clips.

Continue reading “What are some of the main deal points in a music publisher’s agreement?”

But we used the band’s name first in the marketplace. Doesn’t that count for something?

Band Name First Use Music Law Intellectual Property

But we used the band’s name first in the marketplace. Doesn’t that count for something?

There are two ways to help establish ownership in a trademark or servicemark:(1) show first actual usage in the marketplace; and (2) apply to register the trademark on the federal trademark register.

Generally, the first business to use a trademark in the marketplace owns it and can stop others from using it, even without federal registration. Thus, a trademark is generally “owned” by a person or business by virtue of their first commercial use. Formal registration of the trademark with federal agencies – while not required to be the owner of a trademark – affords the legal protection and benefits under the U.S. Trademark laws (the Lanham Act), including the right to sue for monetary damages. However, in case of a conflict between marks, actual use usually takes “priority” over federal registration.

However, priority allows the owner the exclusive legal right to use the trademark (name) in that specific territory only. For example, an LA band that gigs locally only, cannot prevent a Florida band from using the same name if it does not play in Florida. Similarly, a New York (east coast) band could not prevent a Seattle (northwest) band from using the name if it does not play and use the same name in the northwest. However, once the band commercially releases its first record with a major record company and distributes the music and tours nationally, the band’s record and/or its record company may then acquire the national rights to use the band’s name throughout the country, subject to any claims of priority. If somebody is already using the name when the major release occurs, they have “priority” and you cannot stop them from using the same name, even though you may use the name nationally.

(Reprinted with permission of Ruben Salazar, Esq.)

Read more to view related video clips.

Continue reading “But we used the band’s name first in the marketplace. Doesn’t that count for something?”

Can a band use an already trademarked name?

Banks Using Trademarked Name Music Law Intellectual Property

Can a band use an already trademarked name?

Sometimes. For example, a mark that is primarily a surname does not qualify for protection under the federal trademark provisions unless the surname becomes well known or acquires a “secondary” meaning . However, once a last name acquires a secondary meaning in the marketplace (e.g., Sears, McDonald’s), it cannot be used by others whether or not the name is a registered trademark. In order for a band to register a mark that has already gained secondary meaning, permission from the namesake must be obtained.

(Reprinted with permission of Ruben Salazar, Esq.)

Read more to view related video clips.

Continue reading “Can a band use an already trademarked name?”

What about my e-mail?

Email Privacy Computer Law Intellectual Property

What about my e-mail?

As a general legal matter your E-mail should be private, with some important exceptions. As a practical matter it is fairly vulnerable to a dedicated intruder.

Legal Requirements For Privacy:

The Federal Electronic Communications Privacy Act makes it a crime to read or disclose the contents of an electronic communication, including e-mail messages. However, there are important exceptions:

(1) your commercial system operator (your internet e-mail supplier for example) can view e-mail if it suspects damage to its system or harm to another user;

(2) most commercial systems require members to agree to allow the system operators to view and disclose the contents of message if the system thinks it necessary;

(3) your corporate employer may have company-wide rules permitting the company to read your e-mail. If your company does not have any published rules or policies the law is uncertain and varies from state to state but most states have supported the employer’s right to look at its employee’s email; and

(4) Law enforcement officials can look at your e-mail, but they need a court-ordered search warrant – similar to the need for a search warrant to perform a telephone tap – before they may obtain access or disclose the contents of electronic communications.

Read more to view related video clips.

Continue reading “What about my e-mail?”

Can I protect how people, or even computers, can recognize me?

Internet Protection Computers Computer Law Intellectual Property

Can I protect how people, or even computers, can recognize me?

Well, yes, but only as long as the means are something created by you, and are used in commerce. (You probably won’t be able to “copyright” your retinal pattern any more than you could your fingerprint.) For example, how your goods and/or services are identified by, or known to, the community can be the subject of a trade-or service -mark. A ” trademark” is a word, a phrase, a picture, a sound, and even a scent, as long as it serves to identify your product/service to the world.

The advent of the Internet has made trademarks particularly attractive, since even the smallest company now can have a near-global reach for a minimum of effort. Trademarks, like patents and copyrights, must be registered with and issued by national governments; in the U.S., they must be “signaled” or identified to customers by the superscripted or following ®. (Using that symbol when you do not have a registered trademark is a criminal offense.) If you want to signal that you are claiming a mark for a word or phrase, even before you have finished registering it, you should follow it with a superscripted “T”. Only unique registered marks can exist within any given channel of commerce, to avoid confusing the public. General terms cannot be registered (you can’t claim what already is “public property”). And registering a mark does not allow you to then stop others from using the same mark wherever they had been using it before your registration occurred (though they can’t expand). And this has presented some major problems with the advent of the Internet.

Read more to view related video clips.

Continue reading “Can I protect how people, or even computers, can recognize me?”

What about issues of protecting the rights of the creator?

Protecting Right Creator Computer Law Intellectual Property

What about issues of protecting the rights of the creator?

The doctrine of “protecting the creator’s rights” prohibits unauthorized and unpaid-for reproduction, both to encourage creative individuals to seek out rewards for their activities, and to keep third parties from “misusing” other people’s creations in ways that the creator never would permit (if he or she were to be asked).

The U.S. has become a signatory to the Berne Treaty, which has broader definitions of “moral rights” for authors and creators; also, actors, models, and performers are more affected by impersonators or cheap knock-offs these days, and are seeking more protection. Since the big publishing and media companies want to guarantee their continued dominance over the channels of distribution, there’s a lot of money being argued over which means this is going to continue to be a lively legal dispute for years to come.

And since the Internet is global, differences in the length of time granted by various countries for any intellectual property protection are going to be more noticeable. (Japan, for example, only gives a 25-year copyright, which means Elvis and the Beatles are no longer fully covered!)

Read more to view related video clips.

Continue reading “What about issues of protecting the rights of the creator?”