Entertainment Law Outline 1

  1. Representing Talent
  2. A business of intermediaries
  3. Agents focused on deals, personal mngrs on career development
  4. Business mngrs (usually CPAs) focus on financial aspect of clients’ careers
  5. Strong fiduciary obligation to client (ABKCO)
  6. A lot of malpractice claims filed against enter’mt lawyers
  7. Attorneys
  8. Establishing an attorney-client relationship
  9. Att’ys should not give advice unless prepared to accept responsibility for client’s reliance
  10. Att’y is part of team of ppl representing a person
  11. Each type of att’y is differ: book att’y v. music att’y v. acting att’y
  12. Retention agmt defines expectations
  13. Att’y has highest level of fiduciary duty under the law
  14. Duty of Competence
  15. Legal knowledge, skill, thoroughness + preparation reasonably necessary for representation
  16. Consultations w/ more experienced counsel highly advisable
  17. Conflicts of Interest
  18. Enter’mt business conducive to COI
  19. Multiple client representation
  20. MRPC 1.7
  21. (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent COI. A concurrent COI exists if:
  22. The representation of one client will be directly adverse to another client; or
  23. There is a significant risk that the representation of one+ clients will be materially ltd by the lawyer’s responsibilities to another client, a former client or a 3d person or by a personal interest of the lawyer
  24. (b) Notwithstanding the existence of a concurrent COI under paragraph (a), a lawyer may represent a client if:
  25. Lawyer reasonably believes he will be able to provide competent + diligent representation to each affected client
  26. Representation is not prohibited by law
  27. Representation does not involve assertion of a claim by one client against another client represented by that lawyer in the same litigation or other proceeding before a tribunal &
  28. Each affected client gives informed consent, confirmed in writing
  29. Designed to advance & protect confidentiality & undivided loyalty
  30. Factors for assessing COIs:
  31. Duration & intimacy of lawyer’s relationship w/ client’s involved
  32. F(x)s being performed by lawyer
  33. Likelihood that disagreements will arise
  34. Likelihood of prejudice to client from conflict
  35. Key to dealing w/ COI:
  36. Be super careful
  37. Go to bar and ask them Qs to see if there is a conflict
  38. Music lawyer as mngr or agent
  39. Musicians looks to att’y to get deals for them
  40. How do they get pd when young musicians don’t have $?
  41. Bar Ass’ns ltd % payments to personal injury att’ys
  42. Most all att’ys in music industry get pd on % of deal –usually 5-10%
  43. Fee still has to be reasonable
  44. If want to be a mngr & att’y, increase commission to cover legal services, but exclude litigation services as part of the legal services covered in commission
  45. Special considerations re: lawyer conduct
  46. Merging the roles of various enter’mt representation
  47. Lawyers who act as agent/mngr are still subject to states’ codes of PRE to extent any activities involve delivery of legal servs
  48. Advertising & solicitation- MRPC 7.2 + 7.3
  49. Compensation for att’y servs & retention agmts
  50. Customary contingent fee is 5-10% of defined compensation earned by the client
  51. Sunset provision- get a declining % after expiration of term of retention/contingency fee agmt
  52. Model rule 1.5 requires hourly & contingent fees to be reasonable
  53. Criteria for reasonable fee:
  54. Time & labor required
  55. Novelty & difficulty of the Qs involved
  56. Skill requisite to perform the legal service properly
  57. Fee customarily charged in the locality for similar legal servs
  58. Amount involved & results obtained
  59. Experience, reputation & ability of lawyer(s) performing the servs required
  60. Fixed or contingent fee
  1. Contingent fee agmts must be:
  2. In writing
  3. Signed by client
  4. State method by which fees are to be determined, % lawyer shall accrue in event of settlement, expenses to be deducted from recovery
  1. Agents & Personal Mngrs
  2. Agent is someone who procures employ’mt on behalf of the artist
  3. CAVEAT: In CA, can be either a mngr or agent, but cannot be both
  4. Agents want as many clients as possible, mngrs can only handle a few clients at a time
  5. Union regulation of agents
  6. Collective bargaining agmts negotiated b/w unions & producers
  7. Union Franchising System- gives the good housekeeping seal of approval for an agency deal
  8. Agents regulated by unions through franchising licenses
  9. Keep licensing of agents from being a sham
  10. Keep agent % down on deals
  11. State regulation of agents
  12. NY & CA
  13. Agents must be licensed
  14. CA will accept almost any case that touches CA in some way
  15. Labor Commission is generally the “state court” that determines whether you violated the law
  16. Violations:
  17. Mngr procured employ’mt for artist—even if just once
  18. LC will declare K b/w mngr & artist null & void ab initio & make mngr give artist back all collected commission
  19. LC is pro-artist
  20. Won’t recognize arbitration clause if find K to be null & void
  21. Minors?
  22. Certain amount of $ must be put away in trust
  23. Ct will appt a guardian ad litem for minors going into K deals to protect them from bad deals
  24. Mgmt Deal Components:
  25. Commission
  26. Pd % of artist’s income (15-25%)
  27. Net v. gross
  28. Net- cut out expenses artist pd before mngr gets pd % (Artist wants this)
  29. Records deals: most the $ coming from record pays for the actual recording
  30. Gross- income before expenses (Mngr wants this)
  31. Mngr can get portion of getting client a record deal, i.e. finder’s fee
  32. But if att’y, may not be allowed finder’s fee
  33. Term
  34. Generally 3 years, 2 for newer/younger mngr
  35. Irvine- 5 yrs (Owner of Frontline Mgmt- the most important mgmt co in world; he only works on a handshake deal)
  36. Way to incentivize—longer term = need to get artist more work
  37. After Term Income (“sunset” provision)
  38. $ earned after agmt is over for deals that occurred during mngr’s term
  39. Makes sure mngr gets pd for everything he worked on
  40. Expenses
  41. Dictates what mngr can spend w/o authority & still get reimbursed by artist
  42. Mngr still has to inform artist of all expenses on a regular basis
  43. Authority
  44. Mngrs usually want:
  45. Power of att’y
  46. Ability to hire/fire ppl
  47. Dictates what artist wants mngr to be able to do
  48. On certain issues, will always need artist’s permission
  49. Other:
  50. Arbitration clause
  51. Fiduciary duties
  52. Mngrs want reasonable efforts, artists want best efforts
  53. Cases—This is all CA Law
  54. Buchwald v. Superior Ct of San Fran (CA 1967)
  55. Katz signed Jefferson Airplane
  56. Katz not licensed
  57. Said he would procure shows for them & receive commission
  58. All mngr agmts disclaim: I’m not your agent even if I get you a job
  59. Agmt says supposed to resolve disputes through AAA, instead referred to Labor Commiss’r under Talent Agency Act (TAA)
  60. TAA  K b/w unlicensed agent & artist void
  61. Agmt b/w Katz + JA for personal rep advisor & mngr
  62. Does not promise to obtain employ’mt for JA
  63. JA says verbal promise
  64. K misrepresented Katz as an agent
  65. Katz refused to allow them to get own bookings; no payment for bookings they did perform
  66. TAA  remedial statute
  67. Licensed or not, bound by Artists’ Mngrs Act
  68. TAA  LC empowered to hear disputes re: validity of agent-artist K
  69. Doctrine of “exhaustion of administrative remedies”
  70. Must first seek relief from admin body before going to ct
  71. Holding: LC has original jurisdiction to hear disputes arising under TAA, agmt invalid b/c it did not comply w/ Act
  72. Issue—form of the transaction (representing to JA that an agent)rather than substance (K saying not an agent) controls!
  73. Case stands for principle behind power of LC
  74. Jurisdiction of LC should be interpreted broadly
  75. Pryor v. Franklin (CA 1982)
  76. F mng-d P from 1975-1980
  77. 1981 hearing said K void b/c F acted as unlicensed agent
  78. F to repay P
  79. F promise to:
  80. Procure employ’mt
  81. Negotiate agmts
  82. Held out as agent to 3d party
  83. P’s “sole & exclusive negotiator”
  84. Holding: “Broadest remedy of restitution”—F solely culpable for all violations of law, P shared no blame or guilt
  85. K ruled void ab initio b/c F not licensed so F turns over all $ made to P
  86. Rosenthal: Ct didn’t like Δ & develop draconian rule against Δ
  87. Rule: Can’t be in room during negotiations
  88. Barr v. Rothberg (CA 1992)
  89. Oral agmt for R to represented B
  90. R induced B to sign written agmt as an agent
  91. R not licensed
  92. B was w/ Triad Agency—terminates agmt w/ TA shortly after meeting w/ R
  93. Prior to 1988-1990, B hired William Morris Agency
  94. WMA commission on all except ‘Roseanne’ show b/c TA procured that
  95. R part of renegotiations, B received more as part of success of show
  96. Holding: R acted as a personal mngr during renegotiations, which was a joint effort, relief to B denied
  97. Agent  must find engaged in procuring, offering, promising or attempting to procure employ’mt or engagements
  98. New Rule: Can be in negotiation room as long as not the one procuring the work
  99. Statutory exception: if agent asks mngr to lead negotiations, does not mean mngr procured work
  1. Center of Gravity test:
  2. Against the mngr
  3. Must look at entire business of representation
  4. Bright Line test: right to void Ks that secured any type of work
  5. Park v. Deftones (CA 1999)
  6. Δ terminates personal mngr K w/  w/o paying ’s commissions
  7.  got deal w/ Maverick, whose agent, Gary Oscary, interfered w/  & Δ’s K-ual relationship
  8.  sued for commission, Δ countersued saying mngr procured work for them
  9.  said that showcase was an incidental booking in order for the band to get paying work
  10. Holding: K void b/w  & Δ b/c secured performance engagements for Δ w/o being licensed as a talent ag’y
  11. Personal mngrs primarily advise, counsel, direct & coordinate development of artist’s career
  12. Waisbren even incidental activity in procuring employ’mt is subject to TAA
  13. Even though rec’d no comp, the 1993 + 1994 agmts provide for comp
  14. TAA does not expressly exempt procurement where no comp is made
  15. Ct says abuses should apply equally where deferred benefits from obtaining recording K
  16. Act requires license even if commission not rec’d
  17. Chinn v. Tobin
  18. C + Wampole sign agmt w/T to record & publish music
  19. C + W gave exclusive recording services to T
  20. T would be exclusive personal mngr & advisor
  21. Only songwriting services for T  employing an artist does not = procuring employ’mt for an artist
  22. Holding: nothing in TAA says employers of artists must be licensed under TAA
  23. Marathon Entertainment v. Blessing
  24. Actor on Lifetime Show, Strong Medicine, trying to not pay commission to mngr who got her show
  25. New Test:
  26. Apply doctrine of severability
  27. Look at what mngr did
  28. Not going to declare K null & void ab initio even though was not licensed
  29. Sever commissions--$ that came from show goes back to artist, but other mngr-related commissions mngr keeps
  30. Recognition that voiding Ks ab initio was too inequitable on mngrs’ behalves
  1. Entertainment Rights
  2. Personal Rights: Publicity
  3. Right of publicity- right of each individual to control & profit from the commercial value of his or her own ID (property)
  4. Rationale: protection of a celebrity’s proprietary interest in the development of a marketable image
  5. Serve societal interests:
  6. Guard against unjust enrichment (K)
  7. Financ’l incentive to those who cultivate a unique persona (copyright)
  8. “Name & Likeness”
  9. No CL right of publicity in NY
  10. Issues:
  11. Is the right of publicity descendible?
  12. Conditional?
  13. Commercially exploited during person’s lifetime?
  14. If yes, how long does right last?
  15. Exception for parodies and satires
  16. Zacchini v. Scripps-Howard Broadcasting, Co. (SCOTUS 1977)
  17. TV reporter tapes Z’s act—being shot from a cannon—and shows it on TV
  18. Act is only 15 seconds long
  19. Rule: Right to publicity value of his performance
  20. May not use for own benefit the name or likeness of another
  21. Liable for appropriation over artist’s objection & in absence of license or privilege
  22. Ohio Supreme Ct said freedom of press requires some breathing room
  23. Holding: Z not looking for injunction, just wants to be paid—neither the public nor respondent will be deprived of the benefit of petitioner’s performance as long as his commercial stake in his act is appropriately recognized
  24. SCOTUS looking to protect entertainer’s incentive to encourage protection of this type of work
  25. Emphasis on the fact that news station showed Z’s entire act
  26. Powell’s Dissent: report part of an ordinary news program, a total of 15 seconds, which is a routine portion
  27. Elvis
  28. When died, most states did not recognize descendibility for right of publicity
  29. MLK Center for Social Change v. American Heritage Products (11th Cir. 1983)
  30. Center sued Δ for selling plastic busts of MLK as an “exclusive memorial”
  31. Set aside 3% of purchase as contribution to Center, but trust fund for Center was never executed
  32. District Ct found Δs had infringed MLK’s copyrights and ordered to discontinue use of Center’s name in promoting busts
  33. Issue: Did District Ct err in finding that not necessary to determine devisability of right of publicity b/c MLK never commercially exploited this right during his lifetime?
  34. Holding: appropriation of another’s name and likeness for financial gain is a tort in GA & measure of damages is the value of the appropriation to the user, the right is inheritable and devisable, & exploitation beyond the activity which made him famous is not now required
  35. As long as could have exploited, does not matter that he chose not to
  36. Invasion of privacy loose collection of 4 torts:
  37. Intrusion upon ’s seclusion or solitude
  38. Public disclosure of embarrassing private facts
  39. Publicity placing  in false light in public’s eye
  40. Appropriation for Δ’s advantage of ’s name or likeness
  41. Justice Weltner saw no reason to create a new right – right to publicity, he felt case could have been adjudicated based on unjust enrichment
  42. This case is pretty one of a kind—most cts say commercial exploitation is necessary for devisability
  43. “Soundalike” Cases
  44. Midler v. Ford Motor Company (9th Cir. 1990)
  45. Bette Midler declined to participate in Ford commercial
  46. Ford chooses to use a former backup single to imitate Midler’s voice & style making it appear like Midler is actually in commercial
  47. Media’s use of a person’s ID:
  48. Informative or cultural—immune from suit
  49. Exploitative—not immune
  50. Holding: a voice is distinctive & personal & only when a distinctive professional voice is deliberately imitated to sell a product have the sellers misappropriated what is not theirs & committed a tort
  51. A voice is not copyrightable, so not a copyright infringement
  52. Also defrauded the public
  53. Waits v. Frito Lay
  54. Waits sued Frito Lay for using a sound alike recording to advertise Doritos
  55. Used an impersonator
  56. Holding: invaded a personal property right
  57. Damages for peace, happiness & feelings
  58. Can’t take an artist’s persona & use it to your benefit w/o permission
  59. No clear line—ct has to decide whether person is famous enough or voice is distinctive enough
  60. BUT you can always get an injunction to stop someone from using it, the issue is that the more famous you are, the greater damages you get
  61. Trademark
  62. Can be:
  63. Name
  64. Logo
  65. Symbol
  66. Purpose:
  67. Origin of the goods or services being sold
  68. Makes sure the public knows who the originator is
  69. Can ID as:
  70. The Company that creates the work
  71. Dreamworks, Columbia Records
  72. Service Mark
  73. Band’s name
  74. Trade name
  75. Business & good will associated w/ company
  76. TM can’t be descriptive, but may be suggestive
  77. Can’t TM “car,” but may be able to TM “gas mobile”
  78. Lanham Act
  79. Prohibits false representation likely to cause public confusion about the origin or sponsorship of the goods/services/trade name
  80. 3 factors for COA:
  81. Must involve goods or service
  82. Must deal w/ interstate commerce
  83. False designation or description
  84. Remedies:
  85. Legal fees
  86. Punitive damages
  87. Injunctive relief
  88. Example of John Doe Warrant for merchants who sell stuff outside of a concert:
  89. Lawyer goes to court the day before the show asking for John Doe Warrant saying they have probable cause to believe bootleg merchandise will be sold outside of show by ppl whose ID cannot be specifically named
  90. People- can’t get TM in your name until ppl know who you are & name creates designation that mention of brings to mind a certain kind of service
  91. Can TM:
  92. Title of movies, albums, books
  93. Title of song?—highly debatable
  94. First user of name wins on TM
  95. Geographic strength
  96. Limitations: Can’t TM geographic area
  97. Supermarts- McDonald’s, Burger King, Etc.
  98. TM very important for bands to determine who owns rights to the band name w/in the band
  99. Sound Recordings
  100. Four multinat’l companies:
  101. Warner Music Group
  102. EMI
  103. Sony/BMG Music
  104. Universal Music Group
  105. Music-two types of copyrights:
  106. Sound recording
  107. Capturing of the performance w/ some kind of technology that can capture the performance to be played back at another time
  108. Author is the performer
  109. Anyone can do a cover song if secure a § 115 license
  110. Underlying musical compositions
  111. Words and music
  112. Sometimes the music itself
  113. Author is the songwriter, but usually transfer rights to the music publishing company that hired them
  114. Music publishing deal is usually split 50-50
  115. About 70% of artists are also the songwriter
  116. Terrestrial sound recording bills creates way for artists to get paid for performance on radio
  117. Terrestrial radio does not have to pay recording artists
  118. Compulsory license: gov’t sets price for use of song so that song being performed/published/recorded can be used by anyone
  119. Statutory:
  120. Telecommunications Act of 1933
  121. Made pay only practice illegal
  122. Digital Performance in Sound Recordings Act (1995) – provided an exclusive right wrt interactive & subscription service which gave listener ability to select or to predict what would be broadcast
  123. Digital Millennium Composition Act (1995): Compulsory license for other digital broadcast services of a non-interactive, non-predictable nature
  124. Contracts in the Recording Industry
  125. Only officers of record co. have authority to sign artists to what is usually an exclusive recording agmt
  126. Artist revenues:
  127. Recording
  128. Publishing
  129. Touring
  130. Merchandise sales
  131. Definitions:
  132. Masters- recordings from which replications can be made
  133. Material Terms in a Recording Agmt
  134. ASK:
  135. What leverage does the artist have?
  136. What does the artist ask for during the negotiation?
  137. Record Company Commitment
  138. Demo – only in “no-guaranteed option” agreement
  139. Single - used to promo – now required because of digital downloads
  140. Album – usually one album is guaranteed, up to six or seven optioned - label must exercise options to get additional albums
  141. Term, Record Company Options and Recording Obligations
  142. Number of Option Periods
  143. Major Label:6-8 album cycles
  144. Independent Label:3-5 album cycles
  145. Minimum Recording Obligation – One LP (vinyl record) for each album cycle
  146. For a group—leaving member clauses
  147. Pay or play clauses
  148. Territory
  149. North America, World, Universe
  150. Split Territory deals
  151. Advances
  152. Advance plus Recording Cost Budget
  153. Promotions are considered costs, i.e., deficit tour funding
  154. All-in Recording Fund - must pay advance and recording budget from this fund
  155. Recoupment – No royalties paid to artist until all costs and advances are recouped by record label
  156. Costs could be recording/video costs, tour support, promotion, indie radio promotion
  157. One of the biggest problems with record deals
  158. When artist signs deal, gets small advance & record label pays for everything  recoupable $ comes from artist’s royalties not the gross record sale
  159. Biggest charge against the artist was Payola
  160. $500K advance w/ 15% royalty, usually takes 250K copies sold to break even
  161. First Album vs.