Friday, April 5, 2013

Trayvon Martin Case: Family Settles Civil Suit

Trayvon Martin case
New development in the Trayvon Martin case. The family of the slain teen reached a 
settlement with the housing subdivision where Martin was killed last year.
The family has reportedly settled the wrongful-death suit for more than $1 million with 
the homeowners association in Sanford, FL, where Martin was shot and killed by 
George Zimmerman.

Zimmerman was a Neighborhood Watch volunteer for the community when he 
encountered Martin walking home on Feb. 26, 2012.
The Trayvon Martin case is far from over, as the family lawyer plans to file suit 
against Zimmerman as well. Zimmerman is still facing criminal charges, and the 
trial is set to begin
in July.

Thursday, April 4, 2013

'Performance' Clauses In Entertainment Contracts

By John Tormey

This article is not intended to, and does not constitute, legal advice with respect to your particular situation and fact pattern. Do secure counsel promptly, if you see any legal issue looming on the horizon which may affect your career or your rights. What applies in one context, may not apply to the next one. Make sure that you seek individualized legal advice as to any important matter pertaining to your career or your rights generally. 

Just because a U.S. record label forwards an artist its "standard form", does not mean that one should sign it blindly. A number of label forms still used today are quite hackneyed, and have been adopted in whole or in part from form books or other labels' "boilerplate". A number of label recording contracts actually read as if they were written in haste - just like Nigel Tufnel scrawled an 18-inch Stonehenge monument on a napkin in Rob Reiner's "This Is Spinal Tap". (And if you are a musician, I bet you know what happened to Tap as a result).

It stands to reason that an artist and his or her legal counsel should carefully review all forms forwarded to the artist for signature, prior to ever signing them. Through negotiation, the artist can interpose more precise and even-handed language where appropriate. Inequities aren't the only things that need to be removed from a first draft. Ambiguities must also be removed. To leave an ambiguity in a contract is merely to leave a potential bad problem for a later day - particularly in the context of a recording contract which could tie up an artist's exclusive services for many years. And remember, the artistic "life-span" of most artists is quite short - meaning that an artist could tie up his or her whole career with one bad contract, one bad signing.

One seemingly inexhaustible type of ambiguity that arises in entertainment contracts, is in the context of what I call a "performance clause". A non-specific commitment to perform usually turns out to be unenforceable. Consider the following:

1. Clause #1: "Label shall use best efforts to market and publicize the Album in the Territory".

2. Clause #2: "The Album, as delivered to Label by Artist, shall be produced and edited using only first-class facilities and equipment for sound recording and all other activities relating to the Album". One shouldn't use either clause. One shouldn't agree to them as written. Both clauses set performance obligations which are, at best, ambiguous. Why? Well, reasonable minds can differ as to what "best efforts" really means, or what the two parties intended "best efforts" to mean at the time (if anything). Reasonable minds can also differ as to what constitutes a "first-class" facility. If the clauses were ever scrutinized under the hot lights of a U.S. litigation, the clauses might well be stricken as void for vagueness and unenforceable, and judicially read right out of the contract itself. They are that bad.

Consider Clause #1, the "best efforts" clause. How would the artist really go about enforcing that clause as against a U.S. label, as a practical matter? The answer is, the artist probably wouldn't, at end of day. If there ever were a dispute between the artist and label over money or the marketing expenditure, for example, this "best efforts" clause would turn into the artist's veritable Achilles Heel in the contract:

Artist: "You breached the 'best efforts' clause!"

Label: "No! I tried! I tried! I really did!" You get the idea.

Why should an artist leave a label with that kind of contractual "escape hatch"? The answer is, "no reason at all". There is absolutely no reason for the artist to put his or her career at risk by agreeing to a vague or lukewarm marketing commitment, if the marketing of the Album is an essential part of the deal for the artist. It would be the artist's career at stake. If the marketing spend diminishes over time, so too could the artist's recognition and career as a result. And the equities should be on the artist's side, in a negotiation over this issue. Assuming that the label is willing to commit to a marketing spend at all, then the artist should be entitled to know in advance how his or her career would be protected by the label's expenditure of marketing dollars.

In the context of a performance clause - such as the obligation to market and publicize an album - it is incumbent upon the artist to be very specific about what is required. In other words, the artist should write out a "laundry list" of each of the discrete things that the artist wants the label to do. As but a partial example:

"You will spend no less than 'x' U.S. dollars on advertising for the Album during the following time period: ____________"; or even,

"You will hire the ___________ P.R. firm in New York, New York, and you will cause no less than 'y' U.S. dollars to be expended for publicity for the Album during the following time period: _____________".

If you don't ask, you don't get. The artist should make the label expressly sign on to a very specific list of tasks, monitor the label's progress thereafter, and hold the label to the specific contractual standard that the artist was smart enough to "carve in" in the first instance.

* * * *

Consider Clause #2, the "first class facilities and equipment" clause. Note that, unlike Clause #1, this is a promise made by the artist to the label - and not a promise made by the label to the artist.

So, one might now ask, "the shoe's on the other foot, isn't it?"

"'First class' is as vague and undefined a contractual standard as "best efforts", isn't it?"


"So there won't be any harm in my signing onto that clause, will there, because I will be able to wiggle out of it if I ever had to, right?"


The fact is, a contractual ambiguity in a performance clause is a bad thing - in either case - whether in the context of a label obligation to artist; or even in the context of an artist obligation to a label. Ambiguity could hurt the artist, even in the context of one of the artist's own obligations to the other contracting party.

Here's how. The old-saw principle of music "delivery" often finds the artist required to hand over documents to the label, as well as physical materials such as the album itself; in order to get paid. By virtue of a contractually-delineated procedure, the label may be entitled to hold some (or even all) monies back, and not pay those monies to the artist until "delivery is complete". As one might therefore guess, "delivery" is a finite event whose occurrence (or non-occurrence) is oft-contested and sometimes even litigated.

It is incumbent upon the artist to prevent the label from drumming up a pretextual "failed delivery" as an excuse for non-payment. In the context of Clause #2 above, "first-class facilities and equipment" could easily become that pretext - the artist's Achilles Heel in the litigation-tested contract. The label could simply take the position that the delivered materials were not created at a "first-class" facility. And if the contract didn't explicitly define "first class", the artist could well be out the money, at least for the entire duration of an eminently avoidable multi-year litigation over what 2 dumb words mean. (Worse yet, meanwhile, the label might be holding the money and laughing at the artist for his or her lack of contractual prescience).

What about prescience? How can this delivery dispute be avoided? The simple solution in this case, is to take a few extra minutes during the negotiations, and list out the actual facilities intended to be used. Make the label explicitly pre-agree to the list of facilities, by name and address, in the body of the contract. That is what a contract is for, anyway - when used correctly, a contract is really a dispute-avoidance tool. Also note that a contractual ambiguity could hurt an artist, regardless of whether it's embedded in one of the artist's performance obligations, or even in one of the label's! The moral: list all performance obligations. Break them down into discrete and understandable tasks.
About The Author: John Tormey's law practice includes the field of entertainment. If you have questions about legal issues which affect your career, and require representation, please contact him. Visit him on the web at:

Jay-Z and Roc Nation Sports: What Are Their Prospects? Experts Weigh In

Jay-Z and Roc Nation Sports: What Are Their Prospects? Experts Weigh In
In rhyme, Jay-Z has name-checked some of the biggest athletes in the world. And now he’s hoping to ink some of them to his new sports agency firm.

A major power merger took place on Tuesday when two of the biggest names in entertainment announced they were joining forces with one of the biggest names in sports. Jay-Z announced that he’s getting in the sports-agent business through his Roc Nation Sports, and not only did he ink an unprecedented deal with leading sports and entertainment agency CAA, he stole Yankees star Robinson Cano from the most powerful agent in baseball, Scott Boras, who also represents Miguel Cabrera, Ryan Braun, Ryan Howard and others. And he’s not likely to stop there: Jay-Z has been temporarily licensed to represent professional baseball players; over time it’s likely he will take on football and basketball too. (While it may seem that branching out into basketball would conflict with his ownership stake in the Brooklyn Nets, according to Forbes, that stake has dropped to one-fifteenth of one percent.)

Cano is a four-time all-star who has spent his entire career with the New York Yankees and is in the final year of a $57 million contract, according to ESPN, and will be co-managed by the two companies. For their part, CAA Sports manages more than 800 athletes across a broadspectrum of sports, while Roc Nation is the home to Rihanna, J. Cole, Rita Ora, Shakira, Timbaland, Solange, M.I.A., Deadmau5, Meek Mill, and more. Roc Nation Sports will be co-headed by Jay-Z and Roc Nation president Juan Perez.

Reps for Jay-Z, Roc Nation and CAA declined to comment on the announcement beyond a series of prepared statements. In his, Jay said: “Because of my love of sports, it was a natural progression to form a company where we can help top athletes... the same way we have been helping artists in the music industry for years."

"Jay Z and his team at Roc Nation have successfully orchestrated powerful brand and business-building opportunities for their clients,” said Michael Levine, Co-Head of CAA Sports, in a statement. “We look forward to combining our wide-reaching resources on behalf of top athlete clients like Robinson Cano to help them accomplish their goals on and off the field."

And while the news certainly was exciting for both sports and hip-hop enthusiasts, this unprecedented deal opened up a lot more questions than it answered.

“I don’t know how big of a deal it is right away,” says Keith Reed, senior editor at ESPN the Magazine, who specializes in sports and business management. “I think it’s fair to say that entrepreneurs have their first acts... and if they’re really successful and transformative, then they get a second act. A great example of that would be [BET founder] Robert Johnson. Here’s a guy who started a television network, ran it, build it, took it public, took it back private and made a billion dollars. And then he started his second act. [He’s the former majority owner of the NBA’s Charlotte Bobcats.] When I look at Jay-Z beginning his second act, I have to ask the question, ‘Is this a guy who’s second act is going to be all about building the kind of clout, the kind of influence in sports that he already has in entertainment?’”

Fresh Prince Of Bel-Air'

We all remember the original Aunt Viv and her sudden replacement from the hit '90s
 show The Fresh Prince Of Bel Air. Janet Hubert is back and ready to clear the air for 
her audience.
In an interview with The Dish, the former actress said that she was limited to a certain 
number of episodes. "That was 10 weeks of work and then they said that you can’t act 
or perform anywhere else," she revealed. "That was cutting my salary by $150,000 a year. 
How could I pay the bills I needed to pay with 10 episodes?"
Not only was Hubert criticized for her abrupt departure, the former Fresh Prince Star had 
felt undermined by Will Smith himself. "There was a bit of a [cast feud]," she says. "I was 
extremely professional on that set, maybe too professional…but I didn’t adhere to the star 
system. By not playing the game, that cost me. I think what happened, because the audience 
was so on my side at that time, that [Will] probably felt like he needed to go out, and he needed
 to tell a lot of lies."
Things were seen a bit more clear in the rearview when Hubert was the only cast member 
uninvited to the 2011 cast reunion.
However, she says she is ready to put the past in the past. When asked what she would 
have told Will if she were invited to the reunion, she said, "We need to heal this. You’ve 
done some things, you’ve said some things that were totally untrue and you know that they 
were untrue. I’ve said some things that I probably should have never said. But you’ve never 
heard them come from my mouth."

How To Set Up A Publishing Company

By Donald Passman

This article is not intended to, and does not constitute, legal advice with respect to your particular situation and fact pattern. Do secure counsel promptly, if you see any legal issue looming on the horizon which may affect your career or your rights. What applies in one context, may not apply to the next one. Make sure that you seek individualized legal advice as to any important matter pertaining to your career or your rights generally. 

I am now about to save you an enormous amount of time and frustration in setting up a publishing company. The tips I'm giving you here, revealed in print for the first time, were gained by yours truly through a series of hard knocks that will become obvious as you see the proper way to do it.

The Absolute First Thing To DoBefore you do anything, and I mean before you do anything, you positively must take this first step. Affiliate your company with ASCAP, BMI or SESAC. The reason you have to do this first is that these societies will not let you use a name that is the same (or similar to) the name of an existing company. They don't want to accidentally pay the wrong party, and so they're tough about the name you can use. And you don't want to have label copy, printed music, copyright registrations and everything else in the name of a company that can't collect performance royalties. 

You can affiliate and secure your name by completing an application and giving the society three name choices, ranked in order. That way, at least one of the names should clear. If you're also a songwriter and haven't yet affiliated, you should affiliate was a writer with one of the three societies at the same time (they won't let you affiliate as a writer with more than one). You'll have to affiliate as a publisher with the same society you affiliate as a songwriter. This is because the society insists on having a song's publisher affiliated with the same society as the song's writer. And for this same reason, if you're going to be a real publisher, (meaning you're going to publish other people's songs, as opposed to only your own), you'll need to have three companies--one for ASCAP, one for BMI and one for SESAC.

The publishing company affiliation forms are pretty straightforward; they ask you who owns the company, the address, and similar exciting, provocative questions. You also need to give them information about all songs in your catalog (writers, publishers, foreign deals, recordings, etc.), so they can put the info into their system and make sure you're credited (read "paid") for them. You can get affiliation papers simply by calling ASCAP, BMI and/or SESAC. And get started early--it can take about five weeks to get an approval.

Here's a tip in picking a name. The more common your name is, the less likely you're going to get it. So steer clear of names like "Hit Music" and similar choices that, because they're obnoxiously obvious, won't clear. Names using just initials like "J.B. Music" and the like, also seem to have a hard time clearing (so save that concept for your license plate). For some reason, many of my clients enjoy naming their publishing companies after their children or their streets, and these seem to clear routinely. (For the record, I once owned a publishing company, "Holly Kelly Music," that I named after my dogs).

Setting Up BusinessIf you're not a corporation using a corporate name, the next step is to file what, in California, is known as a "fictitious name statement." This is a document filed with a country recorder and published in a newspaper, and it has its counterpart in most states. It tells the world that you're doing business under a name that isn't your own and makes it legal to do so. At least in California, you need this statement to open a bank account and, even more important, to cash checks made out to that name. You can imagine the screaming phone call I got as a young lawyer when I learned this lesson.

Copyright RegistrationNext, register the songs with the Copyright Office in the name of your publishing entity. If they have been previously copyrighted in your name, you need to file an assignment transferring them to the publisher's name.

Society RegistrationTo the extent you didn't do so when you originally affiliated, you must register all your songs with the performing rights society. The societies will send you the forms, which are self-explanatory. You only have to register the songs as either the writer or publisher, not both.
After that, you're in business. You can begin to issue licenses to record companies and other users, as well as make foreign subpublishing agreements, print deals, and so forth.

However, there's no particular need to rush into these deals, nor will anybody be interested in making them, until you have a record released (or some other exploitation, like a film or TV show using your songs), the societies won't even let you affiliate, and frankly, there's not much point in doing any of this. You'll just be all dressed up with no place to go.

About The Author: Donald Passman is a Los Angeles-based music attorney with the firm of Gang, Tyre, Ramer & Brown. Specializing in music business law for over 20 years, his clients include major publishers, record companies, film companies, managers, producers, songwriters, and artists such as REM, Janet Jackson, Quincy Jones, Tina Turner and Green Day.

"You'se Outta' Be In Pictures"

by Sandy Tanaka

Getting your songs into films is a hit-and-miss process. Having the right song for the right scene, and getting your song to the right person who can put your song into that right scene, is a rare occurrence, indeed. But song placement can be lucrative. Fees can range from no payment at all (this usually happens with unknown artists trying to get their foot in the door), to $100,000 for the more popular artists. Placing your song in a film can give you something to put on your resume, contacts to keep in touch with, and the feeling of satisfaction that your song has found a use other than sitting in your cassette rack.
How to get your song ready

First and foremost, you must make sure that when the opportunity arises, your song is ready to be used--no delays, no excuses--because in film, deadlines are crucial. There is rarely time to re-record your song. So, your song must be master quality, meaning quality production ( no cheesy Casio please), and as close to finished as possible. Don't bank on the director being able to share your vision of a 40-piece orchestral masterpiece from your acoustic guitar and vocal demo. You must be ready to deliver your song on DAT or CD at a moment's notice.

Will someone actually talk to me?

Your song needs to get to the music supervisor (he/she coordinates all music aspects of the film), or the director (he/she has a specific vision for each scene), or the producers (they often hold creative and monetary power), or the editor (they often use whatever music they have to cut the picture to), or anyone who can deliver your song to a decision-making hand. If you are professional and polite and generally knowledgeable, you can get these people on the phone and begin to establish relationships. And remember, assistants work very closely with the people in control described above, and in many instances, go on to become those very people.

Know your song.

So, you get someone on the phone and they start to ask you questions: Did you write the song? Is it copyrighted? Do you have co-writers, and if so, how is the song split percentage-wise? Do you have the right to quote a fee on behalf of them? Who owns the master? Are there any samples? How is your publishing company set up? And that's only the beginning!

There are two parts to licensing a song. Synchronization and Master Use. Sync means that you wrote the song and you have the right to license your song. Master Use refers to the actual physical recording--the owner is most likely the person who paid for the recording. If you own your own master, you can negotiate for that half also. If the master owner of your song is a studio owner that has since gone bankrupt and moved to Havana, forget it. No one has the time to hunt him down in order to give him money. And remember, when a film licenses your song, you are not giving them ownership, they are basically renting it from you for a fee.

How your song is chosen.

If your song is good and well-produced, it will have a better chance at prime placement, perhaps used at an opening or end title or a montage sequence. Or, it could be a great song and be put in a less desirable slot--a car door opens, you hear your song for five seconds, the car door slams.

Songs that are just okay also have a chance at being placed, because sometimes, the film just needs a song for mood that does not interfere with dialogue. Many songs get rejected because they interfere with the dialogue instead of supporting and/or adding to it.


You agree on a fee. Usually you do not get paid until the film is released, because, although you sign contracts, there is still a chance that your song may get replaced all the way up until the film release date. Ask for a copy of the music cue sheet. This document lists all the songs, timings, types of cues and writer/publisher information. The cue sheet is the document that is sent to the performance rights societies (ASCAP or BMI) who in turn pay you performance royalties. When that film is released in other countries, you will be due money.

This information just scratches the surface, but it does provide some useful, information regarding the placement of your songs in films. Every situation is different and the legalities can be confusing. It is not okay to be ignorant, so ask questions. Remember, getting songs into films is not your living, it is just one outlet for your songs. Songwriting is your living!

About The Author: Sandy Tanaka has worked in music supervision for six years, coordinating music for films such as Married To The Mob, Colors, Swimming With Sharks and Ice Cube's new film, The Player's Club. She is also a member of the TAXI A&R staff.

Business Matters: ReDigi and the Future of Used Digital Goods

ReDigi's technology for selling used digital music files was found to be in violation of copyright law. The company claims a newer version of its technology will pass muster. Either way, the resale of digital goods may be here to stay.
In determining if ReDigi had infringed Capitol's exclusive right of reproduction, Judge Richard Sullivan found guidance in London-Sire Records, Inc v. John Doe 1. To make a long story short, the court in London-Sire determined that recreating a digital file on a hard disc is a reproduction within the meaning of the Copyright Act. In the context of ReDigi, the reproduction right is implicated whenever a file is reproduced, "regardless of whether the sound recording remains fixed in the original object."

ReDigi argued its technology allows it to "migrate" a copy of a file from the customer's hard drive to its server without making a copy. Put another way, as James Grimmelmann explained at Publisher's Weekly, ReDigi acts like a transporter that beams a file from one place to another. (The metaphor actually came up during oral arguments.) A transporter doesn't make a copy -- the Captain Kirk that beams down to the alien planet is the same Captain Kirk that started out on the Enterprise.

The judge and Capitol ended up seeing ReDigi's "transporter" the same way: it starts with an original and ends with a copy. Thus, ReDigi had made a copy of Capitol's work without authorization.

This story is already in its second phase. ReDigi, which has already said it will appeal the decision, says its 2.0 technology uses a "direct to cloud" and "atom transfer" technologies to transfer digital files in a different way and are not affected by the judge's ruling. And regardless of what happens with the appeal, many people expect there to be some kind of market for used digital goods in the future.

The ruling in the ReDigi case won't eliminate the resale of digital goods, writes Bill Rosenblatt at the Copyright and Technology blog. Rosenblatt believes that in the event the ruling stands, digital resale will be limited to permissions content owners allow for their titles. "This will complicate the lives of resellers, but it will ensure that digital resale doesn’t harm copyright holders. In other words, ReDigi has let the digital resale genie out of the lamp. It’s bound to happen, one way or another."

There is much more at stake than the resale of digital music files. As ReDigi CEO Joel Ossenmacher noted to Fast Company, there's $40 to $45 billion a year being spent in the U.S. each year on games, books and movies. "If we add software, the number gets even bigger." The potential has lured Amazon, which was granted a patent for a secondary marketplace for digital objects in February (the patent was originally filed in 2009). The sheer size of the opportunity means others will attempt to create a secondary marketplace within the rule of the law.

"Right now, there is no future for reselling digital music, but I don't think this is the last word," Christopher Jon Sprigman, a law professor and co-author of the Knockoff Economy, told the Guardian. Indeed, Judge Sullivan practically invited this issue to become part of the copyright reform debate when he wrote the "narrow, technical and purely legal" issues in his decision came from "a court of law and not a congressional subcommittee or technology blog[.]"

Roger Ebert Dies At 70

The outpouring of sentiment will be trending, but there's not enough real-world sentiment that can be said about Roger Ebert.
Love or hate his reviews, film critic Roger Ebert was not only the first of his kind (a Pulitzer Prize winning film critic), but one of the only critics known to the general public, thanks to his long-running movie review shows such as "Sneak Previews" and his 'thumbs-up or down' movie reviews. He died Thursday of complications from cancer,according to the Chicago Sun-Times.
The 70-year-old avuncular champion was Internet savvy before the e-streets became popular. He had been fighting thyroid cancer since 2002, and in the past few years spoke with a voice machine. The latest show to bear his name is the PBS series Roger Ebert Presents at the Movies, in which he briefly appears on camera with a prosthetic chin through other critics shoulder reviewing duties.
A heavy user of the social media tool, Twitter, one of Ebert's last tweets was actually a link-out to one his FFC's, Odie Henderson.
Back in 2010, Roger appeared on the Oprah Winfrey Show, speaking with a machine that tailored his speech more closely to his natural voice. He continued reviewing films and kept in the public eye writing on his popular website, which at press time is currently down. He was truly upbeat, his demeanor and skills remained strong, and he will be sorely missed.