TEXASLAWDIVA

I represent and protect the rights and interest of musicians, songwriters, producers, managers, and record labels which includes contract preparation, review and negotiations of all clients and commercial transactions.

Entertainment law is a diverse field of law that integrates contracts and intellectual property law. Every book, movie script, or television show must grapple with these legal issues.
 
Protection of Intellectual Property
In the entertainment industry, protecting your ideas from the exploitation of others is a major concern. Entertainment lawyers rely on both copyright and trademark law to protect the intellectual property rights of their clients.

Do I Need an Entertainment Lawyer?
The entertainment industry poses many potential legal complications. Consulting with an attorney prior to negotiating any formal contracts or copyright privileges is always a wise thing to do. Speaking with the proper entertainment lawyer will inform you of your rights in the entertainment industry and protect your interests.

When entertainers first begin what do they need to know?

1. NEVER actually sign anything without having a lawyer see it first. You will save yourself years of career-frustration and ruinously expensive litigation down the road.
2. As unfortunate as it is to say, ALWAYS assume that the other party is not worthy of your trust.
3. If the other party can't explain the deal in a way you can understand, it's probably not a good deal.
4. If the deal sounds "too good to be true," it usually is.
5. If you're in the music business, try to find and work through a personal manager. The most important attributes of a personal manager, in order of importance, are: (1) trustworthiness; (2) persistence; and (3) contacts in the business.
6. Find an agent who is interested in you.
7. If you're a musician, you need a decent sounding demo tape of two or three songs. If you're in another field, you should create a good-looking video or DVD reel of how you look and what you do.

Do I need a lawyer or agent to "shop" my demo tape?

1. In many cases, major entertainment companies will not listen to or look at anything that has not come to them under the letterhead of an attorney or agent. They do this in order to protect against later claims that they "stole" someone's idea and to screen out submissions that are less likely to be from "serious" talent sources.
2. At The Law Office of TaQuita M. Hogan-Claiborne we do not ordinarily "shop" the work of new artists unless they have previously retained us as their entertainment counsel. We do, however, have contacts with entertainment company executives, agents and personal managers to whom we sometimes refer new talent under appropriate circumstances

How many songs should we put on our demo tape?
The industry really rarely likes to see more than three or four songs on a demo tape. It should be three or four of the best songs that you have with the best song first. If you have only one good song, then put that song on the demo.

How do we get our demo to a record company?
While many record companies accept "unsolicited material", sometimes it is necessary to go through a manager or a lawyer that the record company is familiar with. Unsolicited demo tapes can be sent via courier, mail or delivered personally.

How do I find a manager?
Finding a manager can be a difficult task. In most cases, if an Artist has commissionable earnings, a record deal in hand and a publishing agreement, managers often come to the Artist. A manager can be solicited much like a publisher or a record company. Often managers find artists and not the other way around.

What is music publishing?
Simply put, music publishing in the business sense, is the exploitation usually by way of licensing rights to musical compositions with a view to making money. In the legal sense, music publishing means issuing copies to the public. Copies may be in the form of a tape, sheet music or records, for example.  

Do you shop demo tapes to A&R representatives?
The Law Office of TaQuita M. Hogan-Claiborne will consider "shopping" or "soliciting" to publishing companies, record companies and managers and we do listen to a lot of material that is sent to the office. Clearly, in order to do so we must assess the material and believe that we could be effective with respect to such material.

What do people mean when they say "keep your own publishing"?
In essence, "keeping your publishing" means keeping the copyright to the music that you have written, own or control. In terms of dollars it means that you will retain the publishers' share of revenue (typically 50%). If, for example, your publishing agreement is divided on a 50/50 net basis, this means that the writers' share is 50% and the publishers' share is 50%. If you keep your publishing, you will receive both the writer's and the publisher's share of revenue. It is important to note that a writer customarily never receives less than the writers' share in any publishing agreement.

This question raises another issue worth considering. Why would you want to keep your own publishing? It depends on the facts of each situation. For most songwriters, there is a time and a place that a publishing deal can and should be made. Such an agreement may be entered into for the purpose of obtaining money that you can get by way of a publishing advance, which can allow you to complete a record. Without it some artists may never find a record deal.

While you do retain more of the income when you hold on to your publishing, you will not have a publisher's expertise in placing your material or developing your talent through a development deal. There are many reasons why you would want to give up your publishing (that is, enter into a publishing contract with a publisher). The timing of such decision is absolutely critical and is subject to the facts of each case. Obviously, you don't give away your publishing for nothing. If you do give it away you would want to be reasonably compensated for it and/or have some means of getting it back after a period of time. You may choose, for example, to give up your publishing to a publishing company without a nominal advance against royalties in hopes of getting a cover version. If the cover version does not happen within a reasonable amount of time, maybe twelve months, you would then ask for the publishing rights to revert to you.

Publishing agreements may be entered into because an act needs more money for tour support which they are not getting from their record company or they may consummate a publishing deal after their publishing has gained some value. The act may have released records which have gone gold or platinum and increased the value of their publishing catalogue.

Your decision to give up publishing or not will depend upon your specific set of circumstances and in either case, skilled legal advice should be obtained prior to making such decisions. .

How should demo tapes be delivered?
A demo tape can be hand delivered, couriered or sent by mail. The urgency of the submission and whether or not it is solicited will affect your decision on how to send the demo tape.

In many cases unsolicited material is not accepted. A solicited tape is a tape that is requested or sent by way of recognized representation as discussed above. In such case one should attempt to have material solicited by a recognized representative, for example, an artist manager or a well known booking agent. In order to ensure that a musical composition is solicited you might send an inquiry letter first and then wait for a reply with respect to soliciting your material.

When should I publish my music?
The decision whether or not to publish your own music is often made as a matter of expediency. For example, if as a song writer you have been unable to attract the interest of an established music publisher, you may make the effort on your behalf to publish your own material. Publishing generally means exploiting musical compositions by licensing rights such as music rights to movie production companies (synchronization rights) or obtaining cover recordings of the music (mechanical rights).

Whether or not you should enter into a publishing agreement is a complex issue subject to many legal and business factors and skilled legal advice should be sought in each and every case.

Can an artist be successful managing him/herself? Does an astute business minded artist need representation by a manager?
The answer is yes, an artist can be successful in managing him/herself. However, at a certain point in an artist's career, in order to be successful as an artist, that is, to continue to be free to record, perform live and write songs, all of which require large time commitments, a manager then becomes valuable (in essence to enable the artist to actually be "an artist". In addition, managers can be helpful in providing the following:

• Advising the Artist on useful personal and business matters.
• Using their professional contacts in the industry to further an artist's career.
• Using their contacts in order to raise money to promote the artist's career.

I am the author of a song that another artist wants to take a sample from. I don't know how to charge them for the use of my material or how much.
Concerning sampling, there are three issues to discuss. If a record company has rights in the sound recording and a publisher has the copyrights to the song which is sampled, then their consent must be obtained. In addition, in some cases the artist's consent will be required. This question as to what will be payable varies largely depending on the stature of the artist who is sampling the material. But as a general rule, if it is a sample from a record which results in another recording, a percentage of artist's royalties on future recordings would be payable. In addition, if a musical composition is sampled, then the right to share in a percentage of future publishing income should be worked out.
The above question deals with the issue of whether to be a member of BMI or ASCAP (which are two of three American performing rights societies) and is a complicated decision. It very much depends on the facts of each case.

How much money will I make when my song is played on the radio?
It is difficult to give an exact figure, as the form of revenue is contingent upon several relevant variables such as: where your music is being played and how often, the length of your song, how much of the song you wrote, and your retained publishing rights to the song. Commercial radio stations are required to pay a fee to the performance rights society (BMI or ASCAP) who in turn monitors the stations' airplay and administers payments to the appropriate parties (songwriters and publishers), based on the above variables.

WHAT DOES COPYRIGHT PROTECT?

Copyright protects original works of authorship. This includes literary, dramatic, musical and other artistic works. Copyright DOES NOT extend to titles, names, or phrases, ideas, systems, processes and information. In other words, a work of authorship able to be fixed in a tangible medium is subject to copyright protection provided there is some element of creativity to the work to be protected.

Copyright protection gives the owner of a copyright the right to reproduce a work, prepare derivative works based thereon, distribute the copyrighted work, perform any copyrighted work publicly, and display the copyrighted work publicly.

COPYRIGHT? TRADEMARK? OR PATENT?
As set forth above, copyright protects works of authorship fixed in a tangible medium. However, copyright protection does not extend to all intellectual property. Rather, your intellectual property may more properly be protected through trademark or patent law. Trademarks identify the source or origin of goods or services and protect the goodwill associated therewith. Patents protect inventions.

WHAT IS PUBLICATION?
The Copyright Act defines publication as the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership or by rental, lease or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication.

WHEN DOES A COPYRIGHT ATTACH?
Since the law was changed in 1978, copyright protection exists from the time a work is fixed in a tangible form. Tangible form means a form that is directly perceptible or perceptible with the aid of a machine or devise. For instance, if you sing a song into your showerhead the song does not garner copyright protection at this time, because it is not being fixed in a tangible media, but if you sing it into a tape recorder it is fixed in a tangible media and so copyright protection would attach.

THE COPYRIGHT NOTICE - THE LITTLE "C": Works published on or after March 1, 1989 are exempt from the notice requirement, though notice is still highly recommended as it puts the world on alert that you are claiming a copyright interest in your work. Also, in the event of an infringement action, an infringer will be precluded from claiming "innocent infringement" thereby entitling the copyright owner to a higher damages award.
For works published before March 1, 1989, the use of notice (i.e. © 1988 John Doe) was mandatory. If you published a work without notice it would revert to the public domain.

Proper form of notice for visually perceptible copies.
This requires The Symbol (©) or the word copyright or the abbreviation Copr; and the year of first publication of the work and the name of the owner of the copyright.

What's that P in a circle?
The P in a circle is the copyright notice for phonorecords of sounds recordings (i.e., the recording itself as opposed to the underlying composition).


DURATION (how long does a copyright last?)
This question is more simple for works created on or after January 1, 1978. The Sonny Bono Copyright Term Extension Act was signed into law on October 27, 1998. This Act extends the term of copyright protection for twenty years. Thus, for works created on or after January 1, 1978, the duration of the copyright will last for the life of the author plus seventy years (i.e., seventy years after the author's death.) The copyright in a work created by one or more people lasts for seventy years after the last surviving authors' death. For works for hire, anonymous and pseudonymous works, the copyright term is ninety-five years from first publication, or one hundred-twenty years from creation, whichever is shorter.


Works published before 1978
For works published before January 1, 1978, under previous law, a copyright was secured either on the date of publication or a work, or the date the work was registered in unpublished form. In both instances, the term of copyright was twenty eight years from the date the copyright was secured. Thereafter, the copyright could be extended for a second term of twenty eight years if a renewal was applied for within the last year of the first term. If not renewed, the copyright expired at the end of the first twenty-eight year term.

Works copyrighted between January 1, 1964 and December 31, 1977 were automatically renewed for a second term. Thus, no registration of the renewal was required.

Works renewed before 1978

Works that were originally copyrighted before 1950 and renewed before 1978 were granted an extension to their renewal term by an act of Congress (recently again extended). Thus, the renewal term now lasts for sixty-seven years (for a total of a ninety-five year copyright term.)

 Works copyrighted between January 1, 1950 and December 31, 1963 still had to be renewed in order to be protected for a second term. If renewed, the second term was extended to sixty-seven years, for a total of a ninety-five year term, see above.) If renewal was not applied for, the copyright protection ended on December 31 of the twenty eight year.

Pre-1978 works that remain unpublished
Works that were created but not published or registered before January 1, 1978 are automatically given copyright protection. The term of protection is calculated the same way as under the current law, i.e., life of the author plus seventy years (or the 95/120 year terms for works for hire, anonymous and pseudonymous works). However, in no case will a copyright in any pre-1978 unpublished work expire before December 31, 2002, and if the work is published before that date, the term will extend for another forty five years (through 2047).

 WHY SHOULD YOU REGISTER?
Although since 1978 copyright vests at the moment of fixation in a tangible medium, registration of your copyright with the United States Copyright Office is important for several reasons:

• Registration establishes a public record of your copyright and puts the world on notice thereof.
• Registration is a prerequisite to filing an infringement suit in the U.S.
• If a work is registered within five years of first publication, the registration certificate will serve as prima facie evidence of the validity of the copyright and of the facts stated in the certificate.
• If a work is registered before an act of infringement occurs, certain additional damages and attorneys fees are available to a prevailing litigant. Otherwise only an award of actual damages is available to the copyright owner (but you still must register before filing your suit).
• Copyright registration allows the owner of the copyright to file with customs to prevent the importation of infringing copies of a work.

This may all seem trivial to you, but the $30 price of registration is a wise investment. You will be happy you registered if your work is ever infringed.

WHAT IS A WORK FOR HIRE?
(do I own it or does that guy who paid me?)
The person that creates a work is the author, and hence, the owner of that work. However, when a work is made for an employer (within the scope of employment), the EMPLOYER, not the employee is considered the author. The law of agency is used to determine whether someone is an employee.

In addition, works that are not created by employees, but which are commissioned, can qualify as a work for hire. In such a case the commissioner receives the ownership interest in the work rather than the artist. The Copyright Act defines a commissioned work as a work for hire in situations when the work is "specially ordered or commissioned for use as a contribution to a collective work, as part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional test, as a test, as an answer material for a test, or as an atlas." There must also be a written agreement signed by the parties that the work shall be a work for hire. Thus, only the foregoing types of commissioned works, when a written agreement exists, can be deemed works for hire. Other types of commissioned works cannot. (This type of situation frequently comes into play in the motion picture industry with writers, directors, etc. The producer becomes the owner of the copyright).


WHAT IS A DERIVATIVE WORK?
A derivative work is a work that is based on, or incorporates, one or more already existing works. Examples of derivative works include multi-media works using preexisting elements, screenplays adapted from books, new musical arrangements, art reproductions or any other work that modifies, is derived from or elaborates upon a preexisting work. To be copyrightable in its own right, a derivative work must contain enough elements of originality to qualify as as new work. Further, a copyright holder in a derivative work will only obtain a copyright interest in his original contribution, not the underlying, preexisting elements.

It is extremely important to note that only the copyright owner of the underlying work, or one who has been granted permission to do so, may prepare derivative works. Unauthorized derivative works violate a copyright holder's exclusive rights under the copyright act.

  

What is a trademark? Trademarks are images, symbols, words or even an overall "look" that identify a trademark holder's goods or services from those of another. Trademarks are distinct from copyrights, which protect original works of authorship, and patents, which protect inventions. They are the brand names like "IBM," or "Volkswagen" that we associate with a particular product, and they are symbols - like the NBC peacock, or the "Coca-Cola" script that we associate with a provider of goods or services. Trademarks are significant in that they allow a consumer to be sure that they are getting the particular goods or services that have come to be associated with a certain seller - the "goodwill" associated with a particular brand. For this reason, trademarks are a very valuable commodity and thus, when they are infringed, serious issues are raised. How do I get a Trademark? Contrary to what many people believe, trademark rights are gained by actual use of a mark rather than by registration. Generally the first party who uses a mark in commerce has the right to use the mark in that geographic area, and the natural zone of expansion therefrom. Thus, if you have a band using the name "The Divas" in the New York area, and you are the first person to use that name, you hold the superior right in that mark in the New York area where you are actually using the mark and any surrounding areas in which the use of the mark would naturally extend. However, if you are not actually using a mark, but have the "bona fide intent" to do so in the future, you can secure use of the mark by filing what is known as an "Intent to Use" Application with the United States Patent and Trademark Office ("USPTO") which will essentially reserve the mark for you in incremental periods of six months. If you are not thereafter able to satisfy the USPTO that you are using the mark, you will lose your right. As a side note, some people who are using a mark locally will chose to file for state trademark registration. This really gives you nothing in addition to what you gain by actually using the mark in commerce, but will serve to put the world on notice of your use of the mark. So What is Federal Trademark Registration? As set forth above, registration is not required to establish rights in a mark, nor is it required to begin use of a mark. However, Federal (as distinct from state) registration with the USPTO can secure benefits beyond the rights acquired by merely using a mark. For example, the owner of a Federal registration is presumed to be the owner of the mark for the goods and services specified in the registration, and to be entitled to use the mark nationwide, as opposed to just in the area of actual use and the natural zone of expansion therefrom, as is the case without registration. For these reasons, a federal registration can provide significant advantages to a party involved in a court proceeding. How Long Does a Trademark Last? Unlike copyrights or patents, trademark rights can last indefinitely if the owner continues to use the mark to identify its goods or services. The term of a federal trademark registration is 10 years, with 10-year renewal terms. However, between the fifth and sixth year after the date of initial registration, the registrant must file an affidavit setting forth certain information to keep the registration alive. If no affidavit is filed, the registration is canceled. How Do I Register a Trademark with the USPTO? As set forth in part above, there are two types of trademark applications: an Intent to Use Application and an Actual Use Application, for marks that are actually being used in interstate commerce. As a preliminary matter, prior to registering a trademark, one should ensure that one has the right in the intended mark, or else one risks suit and/or the prospect of having to change their mark in the future. An applicant is not required to conduct a search for conflicting marks prior to applying with the USPTO. However, in my opinion it is advisable to do so for these reasons (so you don't get sued and/or need to change your mark later.) Unfortunately, however, trademark law is far from black and white. The standard for evaluating whether a prospective mark is infringing is "whether there is a likelihood of consumer confusion regarding the source or origin of goods or services." In English, this roughly translates to whether someone will confuse your mark with someone else's. For the uninitiated, making this determination can be a daunting task, and so usually it is best to hire an attorney to undertake an analysis for you if you are unsure. How  Much does it cost to File an Application?  Filing your trademark application will cost $345 per mark per class. Use of the "TM," "SM" and "®" Symbols Anyone who claims rights in a mark may use the TM (trademark) or SM (service mark) designation with the mark to alert the public to the claim. It is not necessary to have a registration, or even a pending application, to use these designations. The claim may or may not be valid. The registration symbol, ®, may only be used when the mark is registered in the PTO. It is improper to use this symbol at any point before the registration issues.

 

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