The Recording Artists Project was recently featured in a Hollywood Reporter article ranking Harvard Law as one of America’s top entertainment law schools. In attributing Harvard Law with its entertainment cred, the article highlighted RAP’s representation of Grammy winner Esperanza Spalding, as well as three of the school’s notable alums: Tom Cruise’s lawyer Bert Fields, talent dealmaker Bruce Ramer, and legendary music exec Clive Davis.
Congrats to RAP and Harvard’s entertainment law community!
Congratulations to current RAP client Shea Rose and former RAP Client Esperanza Spalding for their contributions to Terri Lyne Carrington’s Grammy Winning album “The Mosaic Project”! The album took home the 2012 Grammy for Best Jazz Vocal Album.
You can listen to Shea Rose’s contributions to the track “Sisters on the Rise (A Transformation)” on her website’s media player at http://www.shearose.com/.
by Susan Wang (J.D. 2014), Emma Tennant (J.D. 2014)
Our first semester at Harvard Law School was about more than briefing cases and reading Supreme Court opinions: through the Recording Artist’s Project we learned about clients. That lawyers work for the best interest of their clients is not always obvious from reading court opinions, but in only one semester our team realized that furthering a client’s interests means finding out about business practices in the industry, and learning about what is negotiable from our bargaining position. One such business practice that we became very familiar with was the distinction between net and gross profits. It’s also a distinction of extreme importance to our client ($$$).
This semester we dealt primarily with a licensing and distribution agreement and an administration agreement (an agreement that grants the publisher the right to administer a particular composition or a catalog of compositions for a limited period, RAP Student Advocate Manual p.42). In one contract the company specified that our client would receive a certain percent of the net sales of physical and digital copies. The split was generously in our client’s favor, but the contract did not specify which expenses would precede calculation of the net sales. In another contract, the company failed to specify at all whether the payment would be in gross or net.
In understanding how these contractual terms or non-terms would affect our client we took several steps. First, we googled the difference between net and gross profits. Gross includes everything that you earn. Net includes only what you have left after covering expenses. Second, we spoke with RAP Supervising Professor Brian Price. He informed us that, under rules of contract construction, in instances of ambiguity, the contract that failed to specify would be interpreted in the non-drafter’s favor — our client’s favor–so he would receive gross income. Third, we thought about what, if anything we could do to change the terms of the contract. Were the terms of these contracts not in our client’s favor, it still might not be in their interest for us to try to negotiate them. This stems from the reality of the music business. Given the relative bargaining power of our client in comparison to the other party’s, we have to consider whether any term at all should be renegotiated. The other party may simply walk away if the legal process for achieving a mutual goal between our client, an unknown in the music industry, and another party, is too onerous. This would leave our client in a position that is worse off. In the end our team accepted the net/gross delineations in these contracts as acceptable for our client, and chose to focus on at most one or two issues per contract. We also determined not to take a hard line.
Boston Globe (January 1, 2011)
We would like to extend some heartfelt congratulations to RAP client Shea Rose on a phenomenal past few months!
In November, Shea Rose put on a show-stopping performance at the Boston Music Awards, where she took home the prize for R&B/Soul/Urban Artist of the Year. She rose to the top of a crowded field that included Ahmir, Bad Rabbits, YouTube sensation Karmin, and the inimitable New Kids on the Block.
At the start of the new year, Shea Rose was named an “Artist to Watch in 2012” and last week, the Boston Globe produced a remarkable feature about Shea Rose that is definitely a worthwhile read.
Congratulations again! We are excited to see your star continue to rise.
Q. What does that © symbol mean? What about (P)?
A. Copyright notices in music come in two forms. The symbol © refers to a copyright in a musical work. The symbol (P) refers to a copyright in a sound recording. Regardless of which symbol is used, each is followed by the year of publication (see section on the Duration of Copyright for a general definition of publication) and the name of the copyright owner.
Copyright notice is no longer legally necessary to ensure copyright protection in many instances. Nevertheless, it is highly recommended that all embodiments of a copyrightable work include copyright notices to ensure others are informed about the copyright ownership. Thus, all CDs, DVDs, or other recording mediums, as well as sheet music, written lyrics, and packaging materials for a recording, should include copyright notices.
Q. What is a compulsory license?
A. The most noteworthy exception to the exclusive rights granted to copyright owners of musical works is the compulsory license. A compulsory license means that the copyright owner must allow anyone who wants to use the copyrighted work to do so, whether the copyright owner wants to or not. In return for this forced license, the copyright owners are reimbursed by fees set through negotiation or by the government (depending on which license applies). The six compulsory licenses are:
• Cable television rebroadcast
• Noncommercial public broadcasting
• Digital performance of sound recordings (e.g. webcasting)
• Digital phonorecord distribution (e.g. downloading digital copies)
• Phonorecords of non-dramatic musical compositions (a compulsory mechanical license or cover license)
Q. OK, now I have a copyright to my musical work. What can I do with it?
A. The scope of copyright protection depends on whether a work is a musical work or sound recording. Copyrighted musical works give the owner of the copyright the exclusive rights over reproduction, creation of derivative works, first distribution, digital phonorecord deliveries, and public performance. The fact that these rights are exclusive means that anyone wishing to engage in the preceding activities must get the copyright owner’s permission.
• The right of reproduction in this context generally means the right to prohibit others from copying or recording the musical work, regardless of how the work is fixed, without the owner’s permission. Typically, reproductions come in the form of either sheet music or a recording of the musical work (the latter is often referred to as a “mechanical” copy).
• The exclusive right to create derivative works means that no one can modify the musical work or use part of the musical work to create a new work without the copyright owner’s permission. New works that rely on samples or recognizable melodies and/or lyrics of the copyrighted musical work qualify as derivative works, as do audiovisual works such as commercials, TV shows, movies, and websites that play the musical work along with images.
Q. What is copyright infringement (or “piracy”)?
A. Copyright infringement occurs when any of the exclusive rights in a copyright are violated without the owner’s permission and no exceptions apply. Piracy most often refers to infringement through unauthorized copying and/or distribution, including downloading, of copyrighted works. Those who infringe copyrights are subject to both civil and criminal penalties. Furthermore, those that aid others in infringing may also be subject to penalties. For example, the owner’s of the original Napster, though they did not themselves download songs without the permission of the copyright owners, were held liable because the software allowed others to download songs illegally.
Q. Can I sample a short section of someone else’s music and use it in my recording?
A. The owner of a copyrighted work has the exclusive right to make a derivative work. To use a sample you need to obtain permission from the original copyright owner. In essence, derivative works build upon, transform, or modify existing works. Derivative works arise in the music industry primarily from the use of samples. Any work that uses a sample of another song is a derivative work, regardless of how long or short the sample or how much the sample is changed or altered. A particular arrangement of a song is also considered a derivative work.
Q. Our lyricist already has a copyright on the music. Does that mean I have no legal rights in my contributions to the recording?
A. Both the musical work and sound recording are separately and individually copyrightable. Furthermore, because every sound recording is by definition a particular recording of a musical work, every sound recording necessarily embodies two separate copyrightable works—the sound recording and the musical work. You have independent rights in your recording.
Q. I play in a band. Which of us owns the rights to our work?
A. A joint work is created when 1) two or more artists contribute to the work and 2) the artists intend that their respective contributions be merged into a single work. Each artist is a co-owner of the entire work, regardless of the amount he or she contributed. Additionally, each co-owner can individually control the work (including selling it) without the permission of the other owners (they still must give the other owners their fair share of any proceeds though). Thus, if one person writes the music and another person writes the lyrics to a song, both own 50% of the song and both can use or sell the song without the other’s permission. Similarly, songs that are written by bands are owned equally by each contributing member.
Q. Does my music qualify for copyright protection?
A. In order to copyright a work, two requirements must be met. First, the work must be original. Original in this context generally means that the work was not copied from someone else’s work. Second, the work must be fixed in a tangible medium of expression. With respect to music, fixation in a tangible medium refers to recording the work on something you can hold or touch. Examples are writing a song down on paper or recording a song onto a storage device such as a tape, DAT, CD, DVD, computer hard drive, or other recording medium. Merely performing a song live does not fix the work in a tangible medium.
Within the subject area of music, there are a number of important types of works that merit discussion. One of the most important distinctions to make is between a musical work (also referred to as a “composition” or sometimes, confusingly, a “song”) and a sound recording (also referred to as a “master”). A musical work is comprised of the musical notes and rhythms, as well as lyrics, of a song. A sound recording is a particular recording of a musical work. The reason for the distinction is that the individuality in expression that occurs during a particular performance has independent artistic value separate from the underlying musical work.