Term
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Definition
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Term
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Definition
| Right to modify/create derivative works |
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Definition
| The Right to distribute copies |
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Definition
| The right to publicly perform |
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Definition
| The right to publicly display (parts, out of order) |
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| What rights do copyright holders in the performance of a record have? |
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Definition
Rights 1,2,3, and 6 (Reproduce, Modify, Distribute Copies and Perform by means of a Digital Audio Transmission).
DO NOT have exclusive right to perform or publicly display. |
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Definition
| In the case of sound recordings, teh right to perform the copyrighted work publicly by means of a digital audio transmission. |
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Definition
CA statute- property right in image of deceased personality (ie name/likeness must have commercial value at time of death) for 70 yrs after death.
VA- any person, for 20 yrs after death.
NY- any person, must be living
(Indiana goes up to 100 yrs after death!)
NOTE: in Vannna White case, ct based holding for White on a common law right of publicity- can appropriate an identity without using a name or likeness- even with a robot. |
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| Limitations on the exclusive copyrights |
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Definition
Can't copyright ideas (only their expression)
Can't copyright facts (even if the author spent lots of time discovering them- originally protected, not effort)
Not protected if another person "independently creates" an exact duplicate-- Wideman thinks this is no longer viable after Bright Tunes v. Harrisongs.
Fair use- criticism, comment, reporting etc. Will balance: nature ofthe use, nature of the copyrighted work, amt copied compared to whole work and effect of the use on the mkt for the copyrighted work. |
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Term
| What are the 2 distinct copyrights in every sound recording? |
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Definition
| in the performance and the in the underlying song. |
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Term
| After copyright owner has publicly performed a song, who else can record and perform it? |
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Definition
ANYONE, as long as they pay the statutory license fee to get a license from Harry Fox Agency, author has no right to refuse.
BUT use of song without obtaining a license is still infringement. |
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| Music Performer Income Sources |
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Definition
Recording (per recording k)- % royalty.
Performing- from the promoter/location/club AND from merchandise
TV/Movie synch licenses (but sometimes re-recorded)
Residuals
NO ROYALTIES FROM OTHERS' USE OF PERFORMANCE, except under Digital Millenium Act. See Agee. |
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| Songwriter and Publisher income |
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Definition
(usually split 50/50)
performace royalties: grand (musical with sets and costumes) and small (radio, live w/o costumes, etc)
mechanical licenses
print (sheet music)
synchronization (movies and filmed tv)
ring tones
advertising/commercials (can be "works for hire" if done for tv-video- only. the 1999 amendment adding sound recordings to works for hire list was rescinded in sept. 2000) |
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Term
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Definition
name- trademark the name and logo.
type of organization- are the players owners/partner or employees? split of money. (can hire musicians to do "work for hire" ONLY IF they are employees)
type of music
songs by band members
agent/manager/lawyer- fees (% or fixed). is client the band or its members?
record deal
publishing- keep or selll. if keep, who administers. |
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Term
| what should you do if you want to sample? |
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Definition
| although beastie boys 9th cir case said they could use 3 notes, Wideman thinks Bridgeport Music v. Dimension Films (I Got the Hookup)is a better rule: free to duplicate the sounds in your own studio. mkt will control license fee- can't be more than it would cost the person to just duplicate the sounds in the course of a new record. |
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Definition
| not covered by federal copyright law (no preemption)- but state copyright law still applies. |
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| Right to reacquire- termination right |
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Definition
| Initially, congress intended that the 28 yr renewal term in the 1909 act be only exercised by the owner/heirs just so that initial owner could get it back- but case law held that renewal right could be conveyed for money- so all (copyright assignment) licenses were for both initial term and renewal term defeating intent of congress that copyright holder be able to get the right back. So congress created termination right that is not assignable. |
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Term
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Definition
by an emp'ee in the scope and course of emp'ment OR comissioned in one of these 9 categories:
part of a collective work, part of a motion pic, translation, supplementary work, compilation, instructional text, test, answer for test, atlas. |
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| do movies make money????? |
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Definition
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| issues for entertainment lawyers: |
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Definition
fiduciary duty, held to a higher std than agents and managers (Croce v. Kurnit)
must deal with conflict situations very carefully (esp with band break-ups)
must meet pro hace vice requirements when litigating outside your bar state. |
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Term
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Definition
* must be licensed *
NY limits compensation to 20%, CA to 10% (most get 10%)
must register contracts with the appropriate regulatory agency- disputes will be governed by those agencies
remedy if perform fn of talent agent w/o license- disgorgement (Stein v. Stevens) |
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Term
| exceptions for unlicensed managers performing quasi-agent functions: |
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Definition
(1) to obtain a recording k (2) if licensed agent works with you or gives you permission.
NY also has exception for "incidental procurement"
Jefferson Airplane case- can't escape disgorgement by just saying in k that you aren't an agent. |
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Term
| thing writers might want over scale |
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Definition
use of pseudonym
consult/approval of director/casting/location
can't be replaced
right to attend cast readings and rehearsals
right to be present on set (including travel)
right to view and comment on dailies
premiere attendance
participation in press junket (for credited writer)
interviewed for DVD |
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Term
| what does WGA scale pay for? |
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Definition
treatment/outline, first draft, second draft, rewrite, polish
scale= the min you are req'd to pay any WGA writer for any of these. established writers will negotiate far more. |
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Term
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Definition
still get 100% on all runs if shown on ABC, CBS, FOX or NBC during prime time
otherwise, 100% for first run and then decreases for ea non-network or non-primetime showing. for 13th run and thereafter, get 5%. |
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Term
| who is included in director's guild (DGA)? |
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Definition
in pecking order:
Director
unit production manager
first assistant director
second assistant director
associate director/technical director
stage manager |
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Term
| what should be included in a reality tv release? |
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Definition
producer's discretion is unlimited
no representation/warranty about the outcome
no obligation to air
producer can edit/portray in any way
warranties from contestant about past, health, no disclosure of outcome.
maybe obligation to help publicize
laundry list of released unknown future claims
compensation
waiver of right to sue (arbitration only)- no punitive. |
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Term
| why are Above the Line expenses called "fixed?" Why are Below the Line called "variable?" |
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Definition
ATL: highly negotiable, but set per movie (ie don't vary depending on how long it takes).
BTL: vary by days of shooting but fixed by unions so not really negotiable. |
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| Saderup Transformative Test for publicity rights |
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Definition
tension btw publicity rights and the first amend.
Wideman thinks this case basically means that the P loses.
Also seen in 2 Live Crew pretty woman case. |
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Term
| when does the publicity right apply? |
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Definition
only when appropriating someone's name/image to SELL YOUR PRODUCT not just to make a product
Ex: when you are making a movie about someone, like the Aviator, you are trying to make a profit but are not infringing on publicity right. |
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| Why was the dissent in Mills Music wrong? |
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Definition
| holding: when termination gives heirs back the right to the song, does not affect previously issued valid licenses for derivative works. dissent thought this made termination useless but didn't account for NEW USES. |
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Term
| what if you subconsciously copy someone else's song? |
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Definition
still a copyright infringement even if no deliberate copying. Wideman thinks this does away with doctrine of independent creation. only need similarity and access, and if similar enough will just assume access.
Bright Tunes, Three Boys Music v. Bolton |
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| some things studios "fudge" so that movies don't make net profits: |
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Definition
distribution expenses:
10% advertising overhead.
taxes & duties (exhibitors pay most of the taxes, not distributors, and they basically make it imposs to check up on them).
dues and assessments (?)
negative cost:
interest- rate usually don't comport with what studio actually pays |
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Term
| how can you take into account the fact that studios fudge their accounting? |
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Definition
(1) negotiate specific parts of the budget (overhead, dues, etc) and get things in writing ahead of time.
(2) change your participation so that aren't getting net %. |
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| recording contract issues: |
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Definition
require 100% newly-written compositions-- often will not have an exception for the album you already recorded. also means "Best of" and "live" don't count.
should only give publishing rights for stuff you wrote after the k is made.
try to limit term.
bc of cross-collateralization, want reversion of rightsif don't make money.
defn of "qualifying album."
compliance rate- only pays 75% on compliance rate (max they will pay is 75% of 90% bc record cos only pay on 90% of retail)--> should change defn on royalties to say 75% or more of the statutory rate.
control issues (licensing songs) |
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