M.E.L.O.N.

Music Biz: 360 Deals Pt. 1

by Tony Berman

Researched & edited by Howie Cockrill

Professional and armchair music industry pundits alike have a new and seemingly bottomless discussion thread.

The topic is a controversial new business model being explored by record companies to save their business: the “multiple rights” or “360” deal.

This is Part 1 of a multi-part, comprehensive article about 360 deals - what they are, where they come from and what issues everyone involved should be aware of. 

Copyright: The 3 "C"s - Compensation, Control & Credit

by Tony Berman

If you’ve ever been hired or hired someone to perform creative services or to create an artistic or technical work, either orally or by signing on the dotted line, this is an article you should read.

Regardless of:

• Whether the deal terms are straightforward or complex,
• Whether you’re dealing with your best friend or a faceless corporation and
• Whether the negotiating process is informal or formal –

this article will give you a FRAMEWORK for thinking about what terms are crucial to you and what is open for discussion. 

This framework is applicable to deals involving copyright, trademark, patents and publicity rights – essentially the entire spectrum of intellectual property. 

In short – if you buy, sell or trade creative services or works, and the very thought of negotiating a deal gives you a massive migraine, you need a simple way to organize the deal points in your mind. 

In addition to some aspirin, you need perspective and context.   

You need the Three C’s.

Copyright: Assignments

This article may be read in conjunction with 3 previous articles:

• Copyright Authorship Basics
• Joint Ownership
• Works for Hire

In these articles, I have discussed how someone comes to "own" a copyright in a work. 

The default scenario is one in which the author of the work is the sole creator of the work.  In that case, that person owns the copyright.

If an author works in conjunction with others, they all contribute copyrightable material and they all intend to create a joint work - those people may be "joint owners."

If an author creates a work for his or her boss and doing so is within the scope of employment OR if an author is commissioned to create a work, there is a signed agreement and the work falls within 1 of 9 categories - the work may be a "work made for hire" and the commissioning party owns the copyright.

This brings me to the final instance in which the owner of a copyright may be someone other than the person who created the work – copyright assignment.

Copyright: Works For Hire

This article may be read in conjunction with 2 previous articles and 1 subsequent article:

• Copyright Authorship Basics
• Joint Ownership
• Assignments of Copyright

There will also be a forthcoming relevant article on Copyright Assignments.

Common misconception: whoever hires or pays someone to create a work owns the work.

As with most things in life, it’s more complicated that that. Works for hire are determined by the relationship between the parties.

Copyright: Joint Ownership

This article may be read in conjunction with a previous article, "Copyright:  Authorship Basics," and 2 subsequent articles - "Works For Hire" and "Assignments of Copyright." 

Have you ever collaborated with someone to create an artistic work?  If so, maybe it has crossed your mind to wonder who owns the copyright.

Here's the basic rule for joint ownership of copyrights:

1. When 2 or more people
2. contribute copyrightable material and
3. mutually intend to create a joint work (i.e., they intend that their contributions be merged into inseparable or interdependent parts of a whole)
4. the work is a "joint work" and the contributors are "joint authors."

Copyright: Authorship Basics

In this article, I will discuss in detail the various situations in which someone gets copyright ownership in a creative work.

You may also read this article in conjunction with 3 subsequent articles:

• Joint Ownership
• Works For Hire
• Assignments of Copyright

Consider the following hypotheticals:

HYPO 1: Harvey writes the next great American novel on his grandfather's typewriter.  Who owns the copyrights in the novel?

HYPO 2:  Harvey and Melissa co-write 12 songs and record them in his basement.  Who owns the copyrights in the songs and recordings?  (click here to read about Joint Ownership)

HYPO 3:  Harvey is a publicist at Toy Company.  His boss asks him to write some copy about a new line of toys for the company website.  Who owns the copyrights in the copy?

HYPO 4:  Harvey is a German professor and is approached by a publishing company to write a translation of Thomas Mann's Der Zauberberg.  Who owns the copyrights in the translation?

HYPO 5:  Harvey runs a travel company and needs promotional pictures for his website.  He finds a great picture of a modernist sculpture in Florence, Italy.  The picture was taken by Adrianna, who works for Nikon, while she was on vacation last year.  The sculpture was commissioned by the International Olympic Committee and created by Antonio, Carmella and Furio for the 2006 Winter Olympics in Torino.  Can Harvey use the picture on his website?

Let's begin with the basics:

Music Biz: Christmas Ghosts, Past and Present

THE GHOST OF CHRISTMAS PAST

It is Christmas Eve, 1877.  Thomas Alva Edison, the “Wizard of Menlo Park”, files a patent application for his latest invention - the phonograph.

The device is entirely mechanical - sounds are engraved on a cylinder by acoustically amplifying sounds. Although Edison invents the machine primarily for secretarial use, its application for entertainment purposes soon becomes apparent.

The next couple of decades pass with Edison and various new companies experimenting with different materials for the cylinder. 

Companies such as the Columbia Phonograph Company begin issuing records which consist largely of marching band recordings and some early theatrical recordings from the New York stage.

As one century passes into the next, two formats compete for consumer acceptance in the embryonic recording industry.  During the protracted battle, fortunes soar in some quarters and bankruptcies are filed just as fast.

Music Law: Foreign Publishing Royalties

Cheap Trick "Live at Budokan."  A classic live album that catapulted the Illinois band to the top of the U.S. charts in the late 70s and early 80s. 

And much of the enthusiasm for the album came from audiences abroad including a dedicated audience in Japan.  "Live at Budokan" clearly demonstrated that American heavy metal groups can have huge followings overseas before they ever make an impact in their homeland. And it is not just heavy metal groups; it is true with many different genres.

Jazz, for instance, has a tremendous following in Japan and Europe. Many of the legendary jazz artists from the American bebop and avant-garde movements found that in the 1960's, their only sustenance was the appreciation of French fans.

The bottom line: 

Foreign recording and publishing deals can be a valuable source of income for the developing artist. Product is distributed, reviews are written, tours build a fan-base, and a buzz is generated.

Internet Law: Webcasting Agreements

Gone are the days when you have to pay top dollar to go to a concert and risk going deaf just to see your favorite band.  Thanks to webcasting, you can watch the concert wherever you want and, sometimes, whenever you want.

What is webcasting you may ask?  The simple definition:  webcasting is the broadcast of media in streaming format via the Internet. 

Television Biz: Writing for Television

Despite all the criticisms heaped upon the medium, television is still capable of nurturing some of the finest writing talent in the entertainment industry. Based on sheer volume alone, the regular writers for a network television show work 6 or 7 days a week approximately 11 months a year.

Yet, while the pace can be grueling, the rewards are often substantial in terms of big salaries and major recognition. Some of the finest television writers, such as James Brooks, occasionally make the leap to writing for the big screen.                

How does an aspiring writer get in the door?  Unfortunately, it is difficult to submit spec scripts to         television shows without an agent. Some shows do accept un-agented submissions, but they are in the minority. Many shows have intern positions which can provide valuable experience and access for the aspiring writer.