Thursday, August 30, 2012

The Myth of The Poor Man's Copyright (revisited)

I am not in the habit of recycling my blog posts but since this question has been asked of me twice this week, I sense that it is "in the air" here we go:

For the past 15 years, I have taught copyright law at a local college. Every year, without fail, I wind up in an argument with a student over the legitimacy of a so-called “Poor Man’s Copyright.” Folks, the Poor Man’s Copyright does not exist.

However, the myth is so pervasive that many of my students have told me that they were been advised by other professors of the important merits of this method.

Basically, the strategy is this: you take whatever work you have created that you want to protect (song, novel, epic poem, etc.) and mail it to yourself (sometimes the myth suggests certified or registered mail but I am not sure of the distinction for this purpose). The belief is that this somehow proves you created the work. In actuality, this proves that you mailed yourself a package.

The problem lies in a fundamental misunderstanding of copyright law. Our law provides that one’s copyright exists in an expressive work as soon as it is “fixed in a medium of tangible expression” (i.e., this is what creates the actual “copyright.”) The second step is registration of the copyright. Registration is not required to sustain a copyright. It is advisable, though, for purposes of proof AND it is a prerequisite to any sort of copyright infringement litigation. For those purposes, there are no short-cuts or alternatives to copyright registration; one must follow the procedures laid out in the Copyright Act.

I am not sure what the historical background of the Poor Man’s Copyright is. A quick Google search reveals that it is a system recommended to this day in several European countries where there is no central copyright registration authority. It also may date back to the days before the Copyright Act of 1976, when there were legal concepts like “common law copyrights” and other anomalies.

I suppose there is nothing wrong with mailing yourself a package, but please do not rely on that action as any sort of substitute for proper registration.

Thursday, August 23, 2012

Read Those Old Contracts

I had a long conversation with a friend/client yesterday.  She mentioned that she had been reviewing some of her old publishing contracts and discovered that she was entitled to a reversion of some of the songs in her catalogs.  It is not unusual for songwriters, especially those who have been at this for awhile and have had multiple publishing deals to find out that there are elements of their contracts that they might not remember.

 Reversion clauses in contracts can be tricky because they are sometimes limited in terms of the amount of time the writer has to notify the publisher to exercise the reversion.

I can think of other types of reversions; for example some recording contracts may feature a reversion of masters and  all master license agreements essentially function the same way.  Again, the trick in all of these instances is that the artist has to take some affirmative action to get their materials back.

There are other dates to keep in mind. Old management contracts may contain sunset clauses-you don’t want to be paying commissions when it’s no longer required. Of course, all contracts have limitation periods after which one can no longer object to a statement or accounting.

Finally, as I have discussed before, with the coming onslaught of statutory terminations under the Copyright Act, keeping up with dates is going to be of more importance than ever before.

As a lawyer, I try to keep up with these important dates for my clients but it’s not always possible, especially when a client has changed attorneys, moved, etc.  Therefore, it is important for all artists to undertake this process-of going back through their old contracts.  You never know what you may discover.

Tuesday, August 14, 2012

On The Legal Status of a Rock and Roll Band

Dealing with disputes among band members (and former band members) is one of the most difficult areas an entertainment lawyer can get involved with.  The legal organization of a musical group involves intersecting area of corporate law, copyright law and trademark law, as well as basic human emotions.  When group members function together in perfect harmony their business models can be a source of inspiration.  However, when human conflicts enter the picture, even the best organized entity can show its shortcomings.

            I have read about two interesting cases recently.  The first involves the 1980's band Queensryche.  According to published reports, the band's corporate entity voted to remove founding member Geoff Tate as lead singer of the band, following a Spinal Tap-like series of events.  The other band members apparently set forth very good reasons why they felt they could no longer continue with Tate in the band and based on provisions set out in their original partnership agreement, they expelled him-subject to a duty they recognized to account to him for his share of profits.  In order to avoid even further controversy, the "new" entity even began performing under a different name, "Rising West" to avoid potential trademark problems.

            Nonetheless, Tate has sued his former partners alleging a host of indignities the most significant being corporate oppression.  This seems to be a text book case in using corporate law to attempt to wrestle some benefit out of an entity and to essentially punish former band mates from working without him.  This scorch the earth technique is far from certain in most cases, especially those involving human feelings and egos.

            An even stranger case  I just read about involves a former member of the J. Geils B Band who happens to be named J. Geils, who is apparently involved in a trademark battle with his former band mates.  It seems that both J. Geils and the J. Geils Band (under their corporate entity T& A Research and Development Corp.) have filed competing trademark applications to try and protect the band's trademark.  This has apparently led to litigation in both the Patent and Trademark Office and in federal court. Buried in the evidentiary murk of all of this, is the fact that at some point in the past all the band members signed a shareholders agreement restricting their right to use the name "J. Geils Band" independently.  If that is true, we may end up with a case of an individual being able to perform under his own name due to activities he once undertook as a shareholder.

            All of this seems to demonstrate the point of this tale,  which is that dealing with disputes among band members is usually very, very difficult.  I've been involved in a lot of these disputes and I can say that more often than not, corporate structures and shareholder agreements as well as form cookie cutter LLC agreements have been virtually worthless in resolving these disputes; while a good well thought out partnership agreement always seems to be both enforceable and convincing to all parties involved.  The moral here is that a band needs to have these discussions early on in their careers and to commit their agreements to writing in a cogent, equitable manner.  It is a discussion that no band wants to have, but it is absolutely vital.