1. ENTERTAINMENT LAW BASICS
September 27, 2017
Connie J. Mableson
© 2017

2. Disclaimer
All content is presented for educational, general reference and informational purposes only.   This presentation is not intended to serve as legal or other advice.  The presenter does not represent or warrant that the information in the presentation is accurate, complete or current for any specific or particular purpose or application.  The presentation is not intended to be a full and exhaustive explanation of the law in any area, nor should it be used to replace the advice of your own legal counsel.
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3. How to reach me: Connie J. Mableson, Esq
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4. Entertainment Law – Sources of Law
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U.S. Constitution: Article I, section 8, clause 8 of the U.S. Constitution provides that,
“The Congress shall have power … to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
Copyright Act, 17 U.S.C. § 101 et seq.
State Statutes (California & N.Y.)
Restatement
Law of personal service contracts and 13th Amendment to U.S. constitution (prohibits indentured servitude)
Common Law/Case Law
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5. Copyright -Works Protected
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Copyright covers “works” as follows: 1. Literary works (Books, computer code, screenplays) 2. Musical works, including any accompanying words (songs/compositions) 3. Dramatic works, including any accompanying music 4. Pantomimes and choreographic works 5. Pictorial, graphic, and sculptural works (visual) 6. Motion pictures and other audiovisual (AV) works (film, TV, video games, some mobile apps) 7. Sound recordings (cassette, CD, MP3, MP4, vinyl)
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6. Practice Areas - Overview
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Literary: Book authors, writers, screenplay writers, computer coders, literary agents, book publishers, authors who self-publish Visual Artists Songwriters and song publishers Film and AV producers, TV producers, mobile games and video games producers and the involved artists Recording Artists, bands, performers, and record labels Celebrities and Athletes who have artistic interests
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7. Copyright Exclusive rights
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Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:
- To reproduce the work in copies or phonorecords;
- To prepare derivative works based upon the work;
- To distribute copies;
- To perform the work publicly;
- To display the work publicly; and
- In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.
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8. Copyright Law Summary Federal Law
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Federal Law
Author/Artist is the Owner unless copyrights are transferred in writing
Owner has 5 Exclusive Rights
-- Reproduce the Work
-- Distribute copies of the Work
-- Perform Work publicly
-- Prepare a derivative Work
-- Display the Work publicly
 Term: Life of Author plus 70 years
 ANY USE OF COPYRIGHTED MATERIAL NOT IN THE PUBLIC DOMAIN REQUIRES PERMISSION OF THE OWNER OR ITS AGENT
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9. RIGHTS are STRONG VERBS (action words)
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Reproduce/Copy
Distribute
Perform
Display
Prepare derivative works (big!)
“EXPLOIT” has a favorable meaning in entertainment law. Exploit = monetize the copyrights and the Artist/Author.
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10. PARTIES/PLAYERS Plaintiff v. Defendant Debtor v. Lender
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Plaintiff v. Defendant
Debtor v. Lender
Landlord v. Tenant
Arts & Entertainment
Artists: authors, writers, performers, musicians, actors, songwriters, celebrities, and those who create works that are copyright protected.
Executives/Producers (“suits”): record labels, movie producers, book publishers, song publishers, distributors, and those who exploit the creative works and creators. These companies have money and distribution.
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11. Right (Artists) and Left (Executives) brain
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12. RISK Risky Business Successes pay for Losses (more loss than success)
More Artists than opportunities
Executive Producers allocate risk to Artists in contracts
Artists give away a lot of rights and revenue streams to get a chance at the golden ring
Negotiating Power rests with Executive Producers until Artist gains popularity (i.e., sales, fame, prestige, celebrity status)
Entertainment Law mixes more business decisions into the law most typical legal practice areas.
Legal advice = business advice
Lawyers run the film and music businesses
Dirty Business where “exploit” is defined positively
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13. DIGITAL REVOLUTION
All Entertainment Industry is based on development of technology
- camera = photographs
-moving picture camera = AV industry
-phonograph = recorded sound/recording industry
Video killed the Radio Star
Digital killed the Analog Industry
Music Industry did not anticipate the extent of the changes – remember Tower Records?
Book Sellers – remember bookstores?
Entertainment Lawyers must stay on top of tech for many reasons – old licenses apply only to bricks and mortar/physical formats not digital, so contracts must include future tech
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14. 9/27/2017
PRACTICE AREAS
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15. Text - Literary Works & Computer Programs
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Authors of: books (printed, ebooks, kindle, audio), poems, short stories, screenplays, computer coders
Agents: Literary and movie
Publishers: Book publishers and movie/AV producers, website owners
Contracts: Agent Contracts
Author/Illustrator Contracts
Ghostwriting Contracts
Book Publishing Contracts
Screenwriter Agreements
Option Agreements (books to film)
Interview Releases & Permissions
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16. Text & Code – Websites General Web
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Website Developer Contracts on behalf of Developer or Website Owner
TOS/EULA
Privacy Policy
Subscriber/User Agreements
Vendor Agreements (Etsy, Amazon)
YouTube and Channel Owners (PewDiePie) and other syndicated platforms
Advertising Agreements
Affiliate Agreements
DMCA
Bloggers (FTC, advertising regulations)
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17. Visual Arts & Images
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Visual Arts include any works that can be seen with the human eye and include “pictorial, graphic, and sculptural works” that are two-dimensional and three- dimensional works of fine, graphic, and applied art and include:
Photographs
Cartoons, Graphics, Illustrations, Comic Strips, Sculptures and Figurines, Paintings, Prints, Posters, Drawings, Artwork on Records, Maps & Globes, Stained Glass, Architectural Designs, Blueprints, Weavings & Tapestries, & Engravings and Etchings
Artist-Dealer Transactions
Moral Rights of Visual Artists
Merchandising for Visual Arts
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18. Audiovisual Works & Motion Pictures
Audiovisual works consist of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds and generally include: Films, Motion Pictures, TV Programs, TV Commercials, Web Commercials, Audiovisual works, Home Videos, & Music Videos Online Digital Games, Mobile Applications, Console Video Games, & Virtual Reality Programs Most collaborative of all arts.
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19. Film – Creative Contracts
Creative Contracts: Producer’s “Production Bible” is all of the contracts with all the artists and contributors to the project on the creative side (hundreds). Lead/Primary Producer and other Associate/Co-producers Writer(s), Director, DP, Editor “Name Above the Title Actor,” 2nd Name Actor, 3rd Name Actor Name Cameo/ Supporting Cast, Extras VFX/Other Key Department Heads Line Producers Crew (lighting, design, construction, location, wardrobe & makeup) VFX Sound Music
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20. Film – Executive and Finance
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Source of Financing - Investors or Bank Loan
Investors - Likely requires a PPM
Investors Paid on a Preferred Return Basis from Producer’s “net”
Lots of Definitions of “net” (net = zero)
Distribution through a Distributor or Agent - Domestic Theater Chains
International Sales per Territory
Film Festivals
Through TV distribution (pay, subscription, Netflix, Amazon Prime, Hulu, or syndication
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21. TV Programs Similar Production Contracts as Film
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Similar Production Contracts as Film
Distribution Agreements: Distribution via “channels”: PPV, subscription based (SHO, Starz, HBO), network - free (ABS, NBC, CBS, Fox), PBS, cable, satellite (DISH), Netflix, Amazon, Hulu and web based channels
Channels Obtain “programs” from:
In-house Productions
Production Companies - License or Buy-out
Syndication
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22. Mobile Applications & Video Games
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Video Games are Audio-visual works similar to film or TV but interactive
Creative Artists: visual and graphical artists, computer coders, colorists
Executive Producers who own the apps or video games need coding platform licenses, agreements with artists, distribution agreements, etc.
Will require website types of contracts as well
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23. MUSIC Copyright to Composition (music and/or lyrics)
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Copyright to Composition (music and/or lyrics)
Copyright to Sound Recording
- sound recordings of spoken word
-sound recordings of bird calls or natural sound
-sound recordings of musical compositions
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24. Musical Compositions
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Compositions consist of the musical notes and lyrics capable of being read in sheet music or in notation form.
Separate Copyright owned by Songwriter(s) with multiple sources of revenues. This is where the money is in the music business.
Music Publishing. Songwriter transfers copyright to a music publisher who will potentially exploit the song and pay songwriter 50%. Publisher under no duty to actually monetize the songs unless artist negotiates an “efforts” type of clause with metrics.
Songwriter has no control over what happens to song.
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25. Sources of Revenue from musical compositions
Mechanical Royalties (each recording that contains a compositions - composer is paid 9.3 cents/song/copy of sound recording by record label)
Performance Royalties (collected by BMI or ASCAP) from radio stations, gyms, TV stations/channels, concerts, grocery stores, restaurants, and all other commercial public performances. BMI/ASCAP charge business owners who use music in the business and then pay the songwriters based on the use of their music
Synchronization Fee for any AV works
Misc. - Juke boxes, music boxes, greeting cards.
“singer-songwriter” means the performing artist writes his/her own songs/musical compositions
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26. Sound Recordings Revenue Sources
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Sound Recordings are embodied in “phonorecords” which are physical or digital objects in which sounds are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device such as a CD player, MP4 player, or vinyl record.
Revenue Sources
Sales of records (vinyl, cassette, CD, MP3/MP4)
Master Use Licenses for AV (films, TV shows, music videos, commercials, all AV productions)
NO terrestrial performance right
Digital Audio Transmissions – streaming such as Spotify, Pandora, GrooveShark, iHeart Radio
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27. RECORD DEALS
Record Labels sign artists to exclusive multiple record deals. Label owns the copyright to the sound recording masters and pays artist a percentage of sales after recoup. Most recordings never recoup. “Recoup” means artist royalties are first applied to pay back label for recording costs. Only after the label is fully “recouped” does artist actually receive royalties in-pocket.
Digital World: “360” deals give labels exclusive control over all entertainment industry activities of recording artist, e.g., phonorecords, live performances & tours, merchandising, personal appearances, books & movies.
Label may or may not want Publishing to musical compositions.
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28. Music Contracts
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Songwriters & Publishers: Collaboration Agreements between or among songwriters, license agreements, administration agreements, publishing agreements, mechanical licenses, synchronization licenses, co- publishing agreement, literally 100’s of types of licenses.
Title & Copyright Infringement issues
Sampling Licenses
Bands and Record Labels: Record label contracts, band agreements (partnership, LLC), collaboration agreements, trademarks (band or artist names), distribution agreements.
Studio Agreements and Spec Agreements
Music Producer Agreements
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29. Related Contracts & Issues
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Artist Loan-out companies
IP holding companies
Artist Collaboration Agreements and LLC’s
Merchandising Agreements
Trademarks, Book Trademarks, Character Trademarks
Rights of Publicity and Life Story Rights
Manager/Biz Manager/Tour Manager contracts
Rights of Privacy/Defamation
Endorsement & Sponsorship Contracts
Legacy/Estate Planning and Death of Artists
-Probate
-Estate Planning
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30. Digital Assets
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A fiduciary is a person appointed to manage the property of another person, subject to strict duties to act in the other person’s best interest. Common types of fiduciaries include executors of a decedent’s estate, trustees, conservators, and agents under a power of attorney. This act extends the traditional power of a fiduciary to manage tangible property to include management of a person’s digital assets. The act allows fiduciaries to manage digital property like computer files, web domains, and virtual currency, but restricts a fiduciary’s access to electronic communications such as , text messages, and social media accounts unless the original user consented in a will, trust, power of attorney, or other record.
Revised Uniform Fiduciary Access to Digital Assets Act, A.R.S. § et seq.
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31. Intangibles
General Intangibles such as Copyrights, and digitally stored sound recordings, musical compositions, visual arts, text.
Contract Rights – continue to receive royalties after death
Frequent Flyer Miles
Card Perks (credit cards money back at year end)
Social Media accounts (Facebook, Linked In, Twitter)
PayPal and OnLine Accounts
Store Accounts (Amazon.com)
Virtual Worlds Avatars & goods
Virtual World currencies
Bit Coin
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32. 9/27/2017
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33. AND THEY LIVED HAPPILY EVER AFTER …
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AND THEY LIVED HAPPILY EVER AFTER …
THE END
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