Entertainment Law

What is copyright infringement and how do the courts determine when infringement has taken place?

Copyright infringement occurs when one of a copyright owner’s exclusive rights is violated. A copyright is violated when someone copies, distributes, performs or displays all or part of a copyright work without the permission of the copyright owner. For instance, a copyright in a musical work may be infringed through the sale of “pirate” or bootleg recordings, by the use of digital “samples” without permission, or by the unpermissive use of a musical work in a video or motion picture. To establish copyright infringement in a court of law, a copyright owner must establish proof copyright ownership and proof of copying. Proof of copying may be established either by direct evidence of copying (i.e., an admission) or by indirect evidence showing 1) access to the original work; and 2) “substantial similarity” between the original and allegedly infringing work. 

Courts will not find copyright infringement if two people independently come up with the same or a “substantially similar” work. Also, the less original a copyrighted work is, the less protection it may be entitled to under copyright law. If two works are strikingly similar, some courts may even infer that a defendant had access to the copyrighted work. Whether a work infringes another usually turns on the issue of substantial similarity. In the case of music, courts have ruled that infringement may occur where the “whole meritorious part of the song” is incorporated into another song, without any substantial alteration. continue

1. Before the agreement
Most groups have probably been working together for a while before they actually sign an agreement. All financial records related to expenses and income should be kept from day one. They should also be made available to the groups’ accountant as soon as possible. The accountant can then establish the fact that the group has had trading years before they signed agreements which may be advantageous from a tax point of view, because it’s better if substantial advances do not come in the groups first year of trading. This should be discussed at an early stage with an accountant. continue

The Controlled Composition Clause addresses how much money a record company will pay its recording artist (in his capacity as a composer) for those of his songs which he records. Thus, every musician who records for, or licenses or sells his or her self produced master to, a record company should analyze the Controlled Composition Clause carefully. Recently, the Controlled Composition Clause has become vastly more onerous, especially as used by the major record companies and thus should be carefully reviewed. However, even in its more benign form this clause needs to be evaluated. 

Typically the Controlled Composition Clause, in its more benign form, provides for the recording artist to grant his record company a mechanical license for the recording artist’s own compositions at a reduced mechanical royalty rate then what currently is in effect. 

A hypothetical example of this latter type of Controlled Composition Clause reads as follows: 

“… Record Company is hereby granted a mechanical license for all Controlled Compositions, as defined below, embodied in the Masters at fifty (50%) percent of the minimum statutory mechanical copyright royalty rate in effect on the date of first release of Records containing such Controlled Compositions (the “Controlled Rate”). The term “Controlled Composition” means a Composition embodied in any Master delivered hereunder which is written or composed by Owner, alone or in collaboration with others, or is owned or controlled, in whole or in part, directly or indirectly, by Owner, or by any person, corporation, partnership, firm, or other entity in which Owner has a direct or indirect interest…” 

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In many of the most important deals that an artist or songwriter will sign in his/her career, there will contain provisions requiring the transfer of ownership of rights to their songs and recordings. This granting of copyrights by an artist to another party is called an assignment and is an important term to understand. continue

The ‘music industry’ has at last awoken to acknowledge the existence of ‘new’ music distribution networks such as the World Wide Web and P2P. It has also begun to realise that quashing these technologies by imposing crippling Digital Rights Management on digital recordings may not be terribly effective, and so a new business model has been proposed - the 360-Degree record deal… continue

All recording contracts will define the “term” of the agreement. This explicitly sets out the length of time that the recording agreement between a company and an artist is valid. This will usually consist of the initial term as well as further option periods, commenced by both parties in varying, negotiable ways. For example, the term of an agreement may be an initial two-year period, with three additional one-year agreements (totaling a five year period). continue

To Distribute Your Digital Music via iTunes, Rhapsody, Napster, MusicNet and more use CD Baby No Monthly Fees, No Runaround.
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What is music licensing and how can it make an artist/songwriter successful? In the music industry, a license is really a “music clearance” sought by a person or company that wishes to use or reproduce another’s work. Currently, there a variety of ways in which licensing can create revenue streams for artists and songwriters. There are hundreds of cable TV shows that use music, films of all stature that need soundtracks, and cell-phones that can play ringtones and ringbacks, among others All of these involve money being paid in return for the right to use someone else’s music. continue

Developments in entertainment technology and the increase in immediate, on-demand content for consumers have driven the expansion of today’s media landscape. With a rapidly growing number of physical and virtual platforms with which to enjoy music the control of copyright in such various uses has many legal implications. Foremost, new uses of content create a need for greater awareness and regulation of copyright infringement. continue

STS distribution is non-exclusive, and once you sign up, your music will instantly be available in several online stores. You can also create buy button links on your web site to let STS handle your credit card processing for you. You can use this same technology to sell your CDs from third party sites such as MySpace.com or from your emails. If you have a barcode for your product, all sales are automatically reported to Nielsen SoundScan. Finally, you can use this same buy button system to sell merchandise like t-shirts and hats! Submission to iTunes via STS is available as well. If your music does well via online sales, STS distribution increases to conventional store placement through FYE, Coconuts, Strawberries, Wherehouse Music, and others.