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Archive for the ‘Music’ Category

Trent Reznor (left) has elected to use CC and alternate payment methods to market Nine Inch Nails music.

Licenses, as I said last week, are a way for an artist to give permission to others to use his or her work. Licenses can be highly restrictive or a virtual give away. Creative Commons (CC) is a license, used mostly on the internet, that allows artists to give permission to others to use their work, so long as the user follows the limitations selected by the artist. CC is both new and controversial, but before all that, a simple description of what it does.

There are four “building block” permissions that a CC license can have:

Attribution: others may use your art, but only if they give you credit.

No Derivative: others may use your art, but they may not change it.

Share Alike: others may use your art and change it, but if they distribute it they must use an identical license to the one you chose.

Non-Commercial: others may use your art, but they may not charge money for what they create.

The four building blocks can be put together in six distinct licenses (attribution is in all the licenses), it is impossible to combine No Derivative and Share Alike because you cannot forbid someone from changing the art and allow them to change it at the same time (at least, not in this reality).

There are nearly 150 million images using the six CC licenses on flickr

The various CC licenses give artists the ability to communicate their intentions to other artists without them ever having to meet to hammer out terms of usage, saving time and money. In this way, CC can be great for remix communities (using the share-alike provision) or for independent film makers looking for cheap (free) background music. The internet allows for nearly unfettered communication and CC allows artists to speak a similar legal language. CC allows for agreements without the use of lawyers, or even talking to each other. A person in Russia can grab a CC image off flickr posted by someone in Sweden and know exactly how they may use it. Even to the degree that CC replaces what I do as an arts/entertainment lawyer, I think it’s great.

Lotus Root Children by Wei Li is a graphic novel published under the attribution-noncommercial-share alike license, meaning anyone can incorporate his work into theirs, but no one may charge for what they create.

No license is perfect for all situations, and that is true for the CC licenses. Some potential pitfalls to consider: If you don’t elect “non-commercial,” another person can incorporate your work in to theirs, sell it, and not pay you anything. The share-alike license is viral, and when combined with the non-commercial license  creates a never-ending flow of work that no one can ever be paid for. If you elect only the attribution license, you have effectively donated your work to the world for whatever anyone will ever choose to do with it, and it is unlikely you will ever get control back. None of these are bad, it’s just important to understand what you are giving people permission to do with your work.

One thing I don’t like about the CC license is that it oversimplifies licensing law and options. The non-commercial license, for example, grants permission for others to copy, distribute, perform, display, or make derivatives. That’s the entire copyright  bag of goodies. There is no way to limit others to only royalty free performances, but reserving the right to charge for distribution. I would like to see the ability to break down which rights can be given or not given under the non-commercial license so an artist can grant unlimited permission to display or perform, but retain copying and derivative work rights.

The CC licenses are presented using simple pictures and brief explanations of what the licenses do. What they accomplish in brevity, they lack in clarity. Should you choose to click on the “View Legal Code” link of each license, the text of the CC licenses prove to be just as wordy as any corporate contract.

The fine print of the attribution non-commercial license

A careful reading reveals such facts as the CC license is world-wide, non-exclusive, and lasts for the duration of the copyright. Because the CC license is non-exclusive, you are free to enter into other non-exclusives licenses with others, even for money. However, once permission is given to one party for non-exclusive use, you cannot enter into an exclusive deal with someone else. The “behind-the-link” fine print also makes it clear that CC is not a law firm, has not been hired by you, and if anything goes wrong, is not responsible to you. Again, good to know.

Last week, The American Association of Composers, Authors, and Publishers (ASCAP) sent an email to its members that characterized CC as a threat to musicians ability to be paid and an assault on copyright. ASCAP is a licensing house that arranges licensing and royalties for musicians. ASCAP, as the “about” page of the website states, “exists to ensure that music creators are paid.” That’s what they do. CC does not exist to ensure musicians get paid, but rather to foster creativity over the internet and allow artists to elect whether or not they seek to get paid. To call CC a threat to musicians or copyright is to call sailboats a threat to rowboats; both get you from one place to another, choosing one may exclude the other, but ultimately both have their place.

Multi-author websites like Wiki demonstrate the power and potential of the free exchange of information over the internet.

Is Creative Commons bad for artists? No. Is it good? Maybe. For the right artist working on the right project, CC will be great. It’s greatest potential, in my opinion, will be in fostering collaboration for non-commercial purposes in film, music, graphic design, authorship, and beyond. If, however, you want to collaborate with others to make money, especially through exclusive agreements, or want to reserve the right to take your art back from the public at some point, it’s probably best to steer clear of CC.

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In our society, signing ones names wields great power; but with great power...

The question “should I sign?” is one of the most pressing faced by artists. Our legal system allows people to form contracts that bind them to do just about anything, making signing scary, as the wrong contract can cost an artist money or control over their work. This post will explain the fundamental issues of what happens when one signs an agreement to transfer some or all rights in an artistic work.

Copyright, like all intellectual property, can be in more than one place at a time, leading to long and complicated agreements about who owns what. Further complicating the matter is the fact that copyright is a bundle of rights (right to make copies, right to make derivative work, right to distribute, right to perform, right to display, right to transmit) and each right can be transferred independent of the others. The two most common agreements involving copyright are assignments and licenses.

An assignment is like a sale, the copyright no longer belongs to the artist. During the life of the assignment, the owner may do whatever she wishes with the work. Assignments may be granted for all rights or just for some. A rapper could assign performance rights to a piece of music to a single act, while retaining the right to copy and distribute the underlying music and lyrics for himself. Assignments may also be for limited periods of time, limited uses, or conditioned on anything the two sides agree to.

Serious Hip Hop Album or Kia Car Peddler? Truly, the Choice is Yours.

A license is more like renting, it gives permission to use a copyrighted work for specific purposes for a certain period of time. Licenses may be exclusive to one user or non-exclusive, allowing the copyright holder to give permission to as many people as they choose. Returning to our rapper from before, instead of assigning the performance right to a single act, he could license the non-exclusive right of performance to ten. While retaining the underlying rights to the background music track, he could license the right to create piano sheet music adaptations. The rapper could even license his most memorable song to a car company so hamsters could jam to it, all the while retaining his right to sell the original album on iTunes. Doo-Da-Dippity!

Art by Jack Kirby, for whatever that's worth.

The combinations of what can be accomplished through assignments and licenses is limited only by the possible uses of a particular field of art and a few protections written into the copyright code. One protection is the right of the original artist to reclaim the copyright 35 years after assignment. This is done to give successful artists the chance to reclaim their early work that may have been signed away in the haste of youth. The children of deceased comic artist Jack Kirby are currently trying to reclaim the rights to characters he created while working for Marvel comics in the 1960s and 1970s. The outcome will turn on what the nature of Kirby’s “while working” was. If Kirby was a freelancer or he created the characters and them brought them to Marvel, he may reclaim the copyright. If he was employed by Marvel in a work-for-hire capacity, as I noted in my previous post, then everything he thought up for Marvel belongs to Marvel.

Tetris creator Alexey Pajitnov (right) with Henk Rogers, one of the men who secured distribution rights to the game for Nintendo.

At one point in the late 1980s, the video game Tetris was subject to at least five assignment or license agreements. Nintendo brought the game to it’s Gameboy handheld system because it negotiated with the proper people, the Communist Soviet Government, rather that the man who invented the game, or his department head, as other tried to do. Because of messes like this, companies will require an artist guarantee they are the true owner of the copyright and the deal won’t go sour later because the person signing the deal didn’t have the right to.

The idea of “optioning” a script or book is often misunderstood. An option contact is an agreement by an author to keep their work “off the market” for a period of time to allow the producer time to put together financing or work out other details around a project. A screenplay or book may be optioned for as little as one dollar and guarantee only that the author won’t sell the work to anyone else for the next six months. That’s it. Unless a script is later bought by assignment or licensed for use, the option is worth only the original payment and the buyer holds no right to use the work.

None of this answers the critical question “should I sign?” because the answer to that depends on an artist’s goal for his or her work and career. The basic thing to remember when signing an agreement is that you will be balancing money and control. The more control you give, the more you should be paid. The more control you retain, the less money you will receive. Young artists often have to give control of their art and careers away for the financial backing studios and labels provide. The money people aren’t necessarily being greedy by retaining most of the profits; they are the ones who took the initial financial risk and bear the losses if money isn’t made.

Lawyers can be very useful in understanding what specifically you’re being asked to sign away and what you’ll be getting in return. Lawyers often know of different ways for you to achieve your goals and different industry standards.

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The greatest cause of copyright disputes is the end of a partnership. Roughly analogous to the disruption to family and finances wrought by a divorce, the end of a creative partnerships finds the art itself “choosing sides.”

For human rights, Molly is correct. But for copyright, 1907 was a much simpler time.

100 years ago the issue of joint authorship was less important as most copyrighted works were books, compositions, and paintings, all respectively considered the achievements of solitary individuals. Not so after the 20th Century, which introduced film & television, video games,comic books, and sound recordings.

The clearly marked roles of a comic book credits section

A joint work is created when two or more persons intend to create a unified work of art. The intent is very easy to spot for works with defined roles. The writer, penciler, inker, colorist roles of comic books are a great example, each role is defined and none of them are intended to stand-alone. The intent can travel over time and space, however. Imagine a person writes song lyrics, but no music. Years later, the lyricist gives the work to a guitarist, who years after that collaborates with a pianist to set the words to music. Who is the author? All three, as each intended for his or her contribution to become part of a joint work.

Any creative contribution can qualify for joint authorship. Generally, technical roles like sound engineer or editor do not qualify. Many a sound engineer or editor may take issue with what I’ve written, as those roles involve creative input. True, but authorship (like all laws) involves drawing an artificial line somewhere.

Rights of the joint authors. Copyright is actually a bundle of rights, giving authors the exclusive right make reproductions or derivative works, distribute, perform, display, or transmit a work. In the United States, each joint author enjoys all rights over the entire work. No matter how small the contribution, if someone qualifies as an author, he or she may use the work how they please or enter into an agreement with a third-party to give away some or all of those rights (Not so in many other countries, which require all authors agree to transfer ownership of a work). Consider the example of a music duo like the Broken Bells (Danger Mouse and James Mercer).

Mercer is free to sign an agreement with Coca-Cola to use one of Broken Bells songs in an ad campaign. He doesn’t need Danger Mouse’s approval, but he would have to split the profits. However, Danger Mouse can still give Pepsi permission to use the same song in a rival campaign, again splitting the profits with Mercer.

Careful contracting can alleviate problems like this. A contract may exist between Mercer and Danger Mouse stating that neither may use or transfer rights to the music without the consent of the other. Coke may also have an out-clause if a work is licensed to a competitor.

Work for hire is a form of contract that transfers the rights of authorship as the creative work is being made. In the film setting, Everyone from the director on down has in their employment agreements a clause stating that is work for hire and all creative contributions are the sole property of the film company. Video game designers, session musicians, and most comic book artists all operate under similar terms.

Work for hire can get scary

How do I protect myself if I’m a part of a creative collaboration? It depends on the field you’re in and how “corporate” you want to be. Much of the time, you’ll be in situations where work-for-hire is the norm. Even then, read your contract carefully to ensure you understand what you’re signing away. Recently, the maker of the Bratz doll got in trouble with Barbie-maker Mattel when it was alleged that the inventor of Bratz had been working for Mattel when he conceived of Bratz and that all his doll ideas belonged to Mattel.

If you’re not work-for-hire, you have freedom to create agreements doing whatever your conscience and pocketbook can bear. Talk to peers about what they’ve done. Talk to an attorney about your options. Just remember that the law assumes you want to share control over the joint work with every other author on the project. If nothing else, choose your partners carefully, what they do will have a profound impact on your art.

Spousal “Authorship” in Washington and California. In Washington state, where I practice law, and California, where much of US entertainment is created, the law is that all property, including intellectual property, is considered shared property when it is acquired or created during marriage. During the divorce of Larry Wachowski, his wife claimed that the idea for the Matrix had been “thought up” during the marriage, meaning she was entitled to half of Larry’s profits from the series. Prenuptial agreements attempt to resolve issues of ownership before they arise. I don’t practice family law, so I’m not going to touch this one, I only mean to let people know it’s out there.

Kisune (above) and Momohime, the protagonists of Muramasa

I wanted to end on a happy note, encouraging people to keep creating joint works of art. I recently finished Muramasa for the Nintendo Wii. The game was a fine example of the legal complexities and artistic beauties of a joint authorship. Based on centuries old kabuki theatre plots (legally in the public domain), drawn and programmed by in-house artists (work for hire) and scored by freelance musicians (who retained the distribution rights to the music separate from the game), the final product combined all the contributions into one experience. The youtube clip (only the first two minutes are necessary to see what I’m talking about) demonstrates what I loved about the game: The artwork and music fuse to create atmosphere while the controls and music engage the player in the intensity of 1 vs. 100. None of the respective artists could have achieved this effect on their own. I became an arts & entertainment lawyer because I wanted to contribute my legal skills to making deals like this happen so the public may continue to enjoy the fruits of joint labors.

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No Enemies

For too many people, the law is something to fear, some ominous presence that is going to get them if they step out of line. Whether it’s a mislabeled item in a tax return, driving by a police officer even when going the speed limit, or a documentary film maker blurring the label on a Coke can, people operate under a cloud of fear that the law is just waiting to punish them for each and every mistake.

The perception is understandable, there are real stories out there the IRS hounding people, police officers having an itchy trigger finger on a radar gun (and their real gun) and intellectual property rights holders coming down hard on harmless users. Lawyers have a vested interest in this perception. If people are afraid of the consequences of making a mistake, they will pay for attorneys to keep them out of trouble. Don’t misunderstand me, many legal matters are quite complex and the expertise of experienced attorneys is legitimately necessary to navigate the issue. Lawyers are often necessary, but fearing the law is not.

I am an attorney. A young attorney with a vision that the law can be different. With the exception of criminal laws, most laws are actually written to enable people to do something: start a business, write a song, provide for their family. Even criminal laws are written with the intent of creating safe, secure societies where people feel enabled to go outside their homes without fear. It’s ironic, then, that many laws actually create fear in people.

I can’t rewrite society, nor would I set my goal that high. My intent with this blog is to take on one area of the law, Art Law, and try to demystify the important legal rules and regulations applying to the creation of art. I love that there are people out there trying to make the world a bit more beautiful, or say something important, or just have fun. I want them to be able to do that free from fear, not considering the law an enemy, but a helper.

The three key areas of law pertaining to artists are copyright, trademark, and contracts. Copyright deals with the created thing. Trademarks identify the source of a thing (art or otherwise). Contracts creates agreements between people and companies allowing them to use the services and ideas of the other. My aim is to keep postings short and to the point, focusing on one area of law, and stating why I think it matters to artists.

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