Artist`s Rights Booklet - University of the Pacific

Artist Rights Workshop 2009
Empower yourself.
Protect your music.
Workshop Booklet
February 21, 2009
1:00-4:00 pm
University of the Pacific’s
Library Community Room
Artist Rights Workshop 2009
Table of Contents
page
Event Guide
1
Sponsors & Acknowledgements
2
Introduction
2
Speaker Biography
3
Simulation #1: Copyright Basics
Simulation #2: Work for Hire & PROs
Simulation #3: Performance Contracts
Simulation #4: Session Releases
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5
6
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Note Paper
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Additional Resource: Sample Session Release Contract
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Glossary
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Resources
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References Cited
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Artist Rights Workshop 2009
Event Guide
Pre-workshop Questionnaire
(available at the door)
Opening Remarks
Professor Thomas Brierton
Meet & Greet
(round table introductions)
Introduction of Event Speaker
Michael Aczon
Simulation #1: Copyright Basics
(copyright types, infringement, copyright rights)
Stretch Break
Simulation #2: Work for Hire & PROs
(works for hire, public performance monies and societies, mechanical licenses)
Simulation #3: Performance Contracts
(how to use a performance contract and what to include)
Stretch Break
Simulation #4: Session Releases
(when to use a session release and what to include)
Post-workshop Questionnaire
Reception
(refreshments & book signing)
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Artist Rights Workshop 2009
List of Sponsors
University of the Pacific’s Undergraduate Research Task Force
University of the Pacific’s Conservatory of Music Pacific Fund
University of the Pacific Library
University of the Pacific’s Music Management Program
University of the Pacific’s Center for Teaching & Learning
McGeorge School of Law’s Entertainment Law Society
Special thanks to…
Keith Hatschek, Program Director of Music Management, University of the Pacific
Thomas Brierton, Prof. of Law, University of the Pacific & McGeorge School of Law
Joseph Thuesen, 3rd year law student at McGeorge School of Law
The staff of the Conservatory of Music, especially Janice Smith
The staff of the University of the Pacific Library, especially Sally DeLorenzo
Introduction
Welcome to the 2009 Artist Rights Workshop! We are excited you have chosen to
participate in today’s events. Whether you are a professional musician or a student,
a legal scholar or an individual with a sincere interest in entertainment law, it is our
hope you will leave today with the knowledge necessary to protect yourself and
your creative works in today’s entertainment industry. Throughout the day’s talks
and discussions, you will develop a heightened awareness of the legal issues facing
our industry as well as an understanding of how these issues fundamentally affect
you, your career, and our society as a whole.
We have purposely developed and designed the day’s presentations to foster a
hands-on approach to learning. Throughout the event, you and your peers will gain
invaluable advice from an entertainment lawyer, explore through discussion
various solutions to real-world situations, and have the opportunity to ask
questions of and speak with our guest speaker, Michael A. Aczon.
We truly hope today’s workshop is an experience you enjoy and find useful as you
continue your career and many prosperous journeys.
Class of 2011, Conservatory of Music
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Artist Rights Workshop 2009
Guest Speaker
Michael A. Aczon
San Francisco Bay Area based Michael A. Aczon has
practiced entertainment law and personally managed select
clients since 1983. As a lawyer, he has represented a variety
of clients in virtually every musical genre from unsigned
local artists to multi-platinum artists and writers to L.A. and
Nashville-based companies. Says San Francisco Examiner’s
Edie Sellers, Aczon is “bright, funny and supremely
knowledgeable. He possesses that too rare ability to distill
complicated issues of entertainment law and convey them in a
clear, storyteller language we all can understand.” Michael’s
book “The Musician’s Legal Companion” is quickly
becoming a “must-have” for musicians of all levels of experience and success in the
Industry. He has been a columnist for Guitar Player Magazine and Electronic Musician
Magazine. Michael is a member of the Music and Recording Industry faculties at San
Francisco State University and Diablo Valley College. He has served on the National
Entertainment Law Initiative Committee for the Recording Academy and is a cochairman of the San Francisco Chapter’s Urban Outreach Committee. Michael lectures
at schools and music industry seminars nationwide.
Michael’s latest book, The Musician’s Legal Companion, is available at your local bookstore
and online at Amazon.com
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Artist Rights Workshop 2009
Simulation #1: Copyright Basics
Dillon has composed a work that he expects to serve well as a follow-up to his recent
success as both a composer and recording artist. Without taking any action to protect
this and other original compositions, Dillon hires side musicians and begins recording.
Fact Pattern 1A:
A week after completing the recording process, Dillon discovers…
1. his unreleased composition topping digital download charts,
2. several remixed versions, and
3. purchasable, physical CDs containing his work.
Fact Pattern 1B:
Two weeks after completing the recording process, Dillon discovers…
1. a local radio station broadcasting a song sounding remarkably similar to his latest
composition and,
2. upon further research, discovers this similar sounding work to be properly
registered with the U.S. Copyright Office.
Consider…
What course of action is available to Dillon? What must he prove to secure his rights?
How might Dillon avoid this second scenario and how might he proceed to facilitate a
successful conclusion?
Notes
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Artist Rights Workshop 2009
Simulation #2: Work for Hire & PROs
Michelle, a talented songwriter with a modest catalog of songs and a reputation for
creating memorable melodies, has recently granted The Act, a four-piece rock band,
the right to record and perform two of her songs. Michelle has properly protected her
works.
Fact Pattern 2A:
After reviewing the contract drafted by The Act, Michelle is concerned with the group’s
claim that her first song is a work for hire. Michelle…
1. composed the song with the group in mind, but did not do so at the written or
verbal request of The Act and
2. feels she is deserving of a royalty (the current contract does not include such a
provision).
Fact Pattern 2B:
After reviewing a rough cut of The Act’s latest album, Michelle is concerned…
1. that the artistic liberties taken by the group have detrimentally and drastically
altered her second song and
2. is not convinced its release would be beneficial to her career or reputation (this
will be the song’s first recording).
Consider…
Should Michelle approach the act with her concerns regarding the use of her works?
How best can this be done? What rights can Michelle assert if she should so choose?
If Michelle and The Act are able to reach an agreement satisfactory to both, what
should Michelle do to ensure she will receive the monies associated with the group’s
public use of her works?
Notes
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Artist Rights Workshop 2009
Simulation #3: Performance Contracts
John and Paul, both talented and locally successful musicians, are looking to launch a
new act called the Fellowers. The duo is approached by a local venue owner who is
interested in booking their new band. This is both John’s and Paul’s first experience
with the management of a group.
Fact Pattern 3A:
The venue owner has specifically requested (verbally) the Fellowers…
1. perform an opening 45 minute set and a closing 30 minute set as well as
2. arrive 1 hour prior to the start of the show.
John and Paul find the owner’s requests agreeable (verbally) and have some of their
own, including…
1. pay equal to that of more established bands,
2. an advance for the costs of rehearsal time,
3. and an agreement to a rider that stipulates:
• air conditioned and separate dressing rooms
• a bowl of each member’s favorite colored M&Ms
• microphones properly mixed and the supply of adequate monitors and
amps
Consider…
How might John and Paul best approach the owner regarding their requests? What pay
options/methods are available to John and Paul? Which would be most beneficial to the
group? How can John and Paul insure they will be paid? What is and is not acceptable in
John and Paul’s rider? Should John and Paul turn their verbal agreement into a written
contract?
Notes
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Artist Rights Workshop 2009
Simulation #4: Session Releases
Jane, a recent graduate of a renowned conservatory of music, has booked a studio and
hired session musicians to accompany her on three of her original works. The session
concludes wonderfully and the third track in particular shines above the rest.
Fact Pattern 4A:
Several months later, Jane is preparing to release a second, larger project with the help
of an independent label. She is including the third track from her first project. A week
prior to its release…
1. Jane receives a call form the cellist (hired for her first project) providing her with
his congratulations and expectation of a royalty.
2. Jane informs the cellist she does not intend to provide him with a royalty.
3. The cellist informs Jane he will seek representation in order to secure his rightful
share of her profits.
Consider…
How could Jane have avoided this situation? What key points might she have included
to insure no misunderstanding between her and the side musicians? How might Jane
proceed to facilitate a positive conclusion for all parties involved? What might this
agreement look like? What recourse does Jane now have to move forward with her
second project?
Notes
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Notes
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Artist Rights Workshop 2009
Sample Session Release Contract
Courtesy of Michael A. Aczon
XYZ Recording Company
0000 Recording Company Way
Anytown, CA 0000
RECORDING SESSION AND IMAGE RELEASE
Dated:________
Joe Musician
(Mailing Address)
Dear Joe:
This letter shall confirm our understanding and agreement with regard to your rendering services as a
non-featured side musician in connection with the production of audio visual Master Recordings (“Master” or
“Masters”, as applicable) to be embodied on phonograph records and audio visual recordings (including, but not
limited to, DVD and similar configurations) featuring that certain recording artist professionally known as
Josephine Artist which are intended for commercial release. The Masters that we have hired your services
embody the following musical compositions:
“Josephine Sings The Blues”
“Josephine Rocks Out”
“Rap, Josephine, Rap”
We hereby engage your services as a non-featured side musician and you have accepted such
engagement. You agree to be available at such times as we shall designate (after consultation with you regarding
your other professional engagements) including, without limitation, at rehearsal sessions, recording sessions, and
mix-down sessions in connection with the production of the Masters. You agree to diligently, competently, and to
the best of your ability, experience and talent to perform at our satisfaction all of the services required of you
hereunder.
The term of this agreement shall commence as of the date of our commencement of principal recording of
your recording session(s) and shall continue until you have completed your recording session(s) to our
satisfaction.
As full compensation and conditioned upon your full and faithful performance of all the terms and
provisions hereof, including, without limitation, your actual rendition of the services which you are to perform
hereunder, we shall pay you the sum of $
upon completion of your services. You acknowledge and
agree that you are not entitled, nor shall you make any request from us or our assigns for any further payment of
fees, royalties, residual income or any other compensation or consideration in connection with your
performances hereunder, regardless of the number of versions, so called “remixes”, or other derivative works on
which your performances may be utilized.
Without further payment than provided for in this Agreement, you agree that Josephine Artist and her
affiliate record label shall own the entire worldwide right, title and interest, including, without limitation, the
copyright, in and to the audio and audio-visual Masters embodying your performance; any incidental words, lyrics,
or music (including, but not limited to spontaneously created, ad-lib, or improvised material) provided by you on
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your performance; the performances embodied therein and the results and proceeds of your services hereunder,
as our employee for hire for all purposes of the applicable copyright laws, free of any claims by you or any person,
firm or corporation. Alternatively, you grant to us the entire worldwide right, title and interest derived from us,
including, without limitation, the copyright, in and to the Masters. Notwithstanding the foregoing as it may relate
to copyright purposes, you are rendering your performances hereunder as in independent contractor. You hereby
acknowledge and agree that we or our assigns may make derivative works of such copyrighted Masters embodying
your performances, including, but not limited to, different versions (i.e. a cappella versions, derivative work, or
edited versions), or re-mixes as we may determine at our sole discretion.
In addition, you grant to us and our assigns the worldwide right in perpetuity to use and publish and to
permit others to use and publish your name, likeness, voice, photograph, video images and other biographical
material in connection with your services and performances hereunder and the results and proceeds thereof. We
shall have the right to assign any and all rights granted herein to any person, firm, or company. Your rights and
obligations under this agreement shall not be assignable. We shall make reasonable efforts to accord you credit on
copies of phonorecords embodying your performances which are distributed for commercial sale; however, we
shall not be in breach of any of our obligations whatsoever if such credit shall not be given.
You warrant, represent, covenant and agree that: (a) You have the right and power to enter into this
agreement, to grant the rights granted by you to us hereunder and to perform all the terms hereof; and (b) No
materials, ideas or other properties furnished or designated by you and used in connection with your
performances hereunder will violate or infringe upon the rights of any person, firm or corporation, including, but
not limited to, any violation of copyright or contract rights.
You hereby indemnify, save and hold us and any person, firm or corporation deriving rights from us
harmless from any and all damages, liability and costs (including legal costs and attorneys' fees) arising out of or in
connection with any claim, demand or action by us or by any third party which is inconsistent with any of the
warranties, representations, covenants or agreements made by you in this Agreement. You shall reimburse us or
our assigns on demand, for any loss, cost, expense, or damage to which the foregoing indemnity applies.
You acknowledge that you have been represented by independent counsel or have had the unrestricted
opportunity to be represented by independent legal counsel of your choice for purposes of advising you in
connection with this Agreement. If you have not been represented by independent legal counsel of your choice
in connection with this Agreement, you acknowledge and agree that your failure to be represented by
independent legal counsel in connection with this Agreement was determined solely by you. The terms and
provisions hereof, this Agreement shall be binding upon and inure to the benefit of the respective successors,
assigns, and personal representatives of all parties. This Agreement contains the entire Agreement of the parties
relating to the rights granted and obligations assumed herein. Any and all representations, modifications or
amendments concerning this Agreement shall be of no force or effect unless contained in a subsequent written
modification signed by all parties.
Please acknowledge your receipt of your session fee of $
and that you have read, understand,
and acknowledge your agreement with us by signing in the space indicated below.
________________________________
JOSEPHINE ARTIST
___________________________________
JOE MUSICIAN
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Artist Rights Workshop 2009
Glossary
Advance: A payment made to an artist in expectation
of future profits. The artist is usually obligated to repay
the advance (often in the form of withheld royalties).
Print: The publication (see Publish) of a work in its
tangible form (often sold to consumers as sheet music).
Public Performance Monies: Monies generated by
and paid to the composer for the performance of
his/her work on television, radio, or other public venues
(concerts included).
Catalog: The entire collection of an artist’s or group’s
songs, whether they be original compositions or song
recordings of works composed by other individuals
(Greatest Hits albums usually draw upon an artist’s
catalog).
Publish: The distribution of a work in print (that is
tangible) form.
Charts: Rank top selling albums, artists, and songs for
a specific period of time (example: Billboard 200)
Rider: Portion of a performance contract that consists
of the tailored requests to a venue by the artist or group.
Cut: A particular recording (often one of several
recordings) made by an artist of a work.
Royalty: Payment made to an artist for the use, sale, or
individual replication of their work (in other words, a
payment made each time an artist’s work is used).
Independent Label: A label independent from
(though not necessarily unassociated with) a major
record label. Often, these companies are smaller than
the major record labels.
Session Musicians: Musicians hired to perform on a
recording but not considered a part of the act.
Typically, these musicians do not receive a royalty.
Infringement: The unlawful and/or unauthorized use
of another’s work. The person suing for infringement
must prove 1) the person committing the infringement
had access to the original work and 2) the infringing
work sounds remarkably similar to the original work.
Session: A particular segment of time spent in the
recording studio during the recording process (may be
measured in hours or days).
Set: A portion of a concert comprised of several songs
but not forming the entirety of the performance (there
is often more than one set to a concert).
Mechanical Licenses: The license that must be granted
in order to include a recording of another’s work on
your album (often involves royalties).
Side Musicians: Musicians hired for a specific tour,
performance, or period of time but who are not
recognized as an integral part of the act.
New Media: Music distributed in the form of ring
tones, callbacks, etc.
Online Distribution: The distribution of music via the
world wide web and applications, such as iTunes, that
transmit data in a similar fashion.
Sound Recording (SR) Copyright: One of the two
types of copyrights that specifically protects a sound
recording (such as a track of an album) of a work.
Typically associated with the recording industry.
Performing Arts Works (PA) Copyright: One of
the two types of copyrights that specifically protects a
work’s tangible (that is written) form. Typically
associated with the publishing industry.
Work (made) for Hire: A copyrightable work created
by the author at another’s request and to which the
creator releases all claim upon successful execution of a
contract (typically upon completion of the work and
receipt of payment).
Performing Rights Society/Organization:
Companies responsible, under contract with publishers,
to issue licenses for songs, pay royalties to songwriters,
and to collect monies associated with the public
performance of copyrighted and registered works.
Compiled with the help of The Musician’s Legal
Companion by Michael A. Aczon and All You Need
to Know About the Music Business by Donald Passman
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Artist Rights Workshop 2009
Resources
Books
All You Need to Know About the Music Business by Donald S. Passman
Beyond Talent: Creating a Successful Career in Music by Angela Myles Beeching
Entertainment, Media, and the Law by Paul C. Wieler
How to Get a Job in the Music Industry by Keith Hatschek
Music Law: How to Run Your Band’s Business by Rich Stim
Musician’s Business and Legal Guide by Mark Halloran
The Musician’s Legal Companion by Michael Aczon
New Songwriter’s Guide to Music Publishing by Randy Poe
This Business of Music by M. William Krasilovsky
Trade Magazines & Websites
Billboard Magazine (www.billboard.com)
www.Billboard.biz
www.Pollstar.com
Performing Rights Societies
ASCAP (www.ascap.com)
BMI (www.bmi.com)
SESAC (www.sesac.com)
Copyrights
United States Copyright Office – www.copyright.gov
Legal
California Lawyers for the Arts (www.calawyersforthearts.org)
References Cited
The information provided in this booklet has been compiled by A. Bryce McLaughlin with advice from
Professor Keith Hatschek and Professor Thomas Brierton and with information from the following
sources:
Aczon, Michael A. The Musician's Legal Companion. Boston: Course Technology, 2008.
Passman, Donald S., and Randy Glass. All You Need to Know about the Music Business. New York: Free
P, 2006.
Stim, Rich. Music Law: How to Run Your Band's Business. Nolo.
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