November 23, 2015

Center for Art Law Case Blurbs

The following case selection first appeared in this week's Center for Art Law newsletter:

Yale University v. Konowaloff, (2nd Cir. Oct. 20, 2015) aff'ing 5 F.Supp.3d 237 (2014) -- The Court of Appeals upheld the 2014 ruling to dismiss the claim by a French citizen, Pierre Konowaloff, against Yale University challenging ownership rights in Van Gogh's "The Night Cafe." The artwork in dispute belonged to Konowaloff's great-grandfather, Ivan Morozov, whose art collection was nationalized by the Soviet authorities following the 1917 Bolshevik Revolution. At least two work from the Morozov collection had been sold to American collectors in the 1930s.

Authors Guild v. Google Inc., 13-4829-cv (2nd Cir. Oct. 16 ,2015) aff'ing 770 F. Supp. 2d 666 (S.D.N.Y. 2011) -- Circuit Judges, including Pierre N. Leval, who coined the term "transformative use" in 1990, ruled that the Google book scanning project was permissible under the fair use exception to the 17 U.S.C. Copyright Law. Court held that the Google Book project does not serve as a market substitute to the original works. On the contrary, it augments public knowledge about Plaintiff's books without providing the public with a substantial substitute for matter protected under the law.

Crawford v. Weider Health and Fitness, 2015 WL 6447396 (NY Sup. Oct. 22, 2015) - Gray Crawford, former owner of the defunct Kundus Gallery in San Francisco, has filed suit in New York Supreme Court for the return of a 500+ year old Buddha statue. Crawford alleges that he bought the piece from a London dealer in 1975 for $10,000 and had it stolen from him in 1983. He was unable to find the Buddha until August when it appeared in the highlights of an upcoming Sotheby's auction. Sotheby's agreed to pull the work from the auction but returned it to Weider Health and Fitness, a California-based company who claims ownership of the work and consigned it to Sotheby's for sale.

U.S. v. Brugnara, 2015 WL 5915567 (N.D. Cal. 2015) -- Real estate mogul Luke Brugnara was sentenced to seven years in federal prison following May convictions of wire and mail fraud, escape, contempt and making false statements in court. Brugnara, who represented himself at trial, never paid an art dealer for a bronze Edgar Degas sculpture shipped to him in 2014, claiming both that it was a gift and that it was stolen by the deliverymen. Brugnara's post-trial attorney argued that he was never competent to stand trial because of untreated bipolar disorder, delusions and narcissism. The court denied the request for a competency hearing and reasoned that he would probably not submit to a court ordered treatment plan anyway.

The Center for Art Law strives to create a coherent community for all those interested in law and the arts. Positioned as a centralized resource for art and cultural heritage law, it serves as a portal to connect artists and students, academics and legal practitioners, collectors and dealers, government officials and others in the field. In addition to the weekly newsletter (, the Center for Art Law subscribers receive updates about art and law-related topics through its popular art law blog ( calendar of events ( The Center for Art Law welcomes inquiries and announcements from firms, universities and student organizations about recent publications, pending cases, upcoming events, current research and job and externship opportunities. To contact the Center for Art Law, visit our website at: or write to

November 21, 2015

The 11 Contracts Every Artist, Songwriter & Producer Should Know - Live Performance & Touring

By Steve Gordon

Steven R. Gordon, Esq. ( is an entertainment attorney specializing in music, television, film and video. His clients include artists, songwriters, producers, managers, indie labels, music publishers as well as TV and film producers, and digital music entrepreneurs. He also provides music and sample clearance services for producers of any kind of project involving music. Mr. Gordon is the author of The Future of the Music Business (Hal Leonard 4th ed. 2015,

The author gratefully acknowledges the assistance of Ryanne Perio, Esq. in the preparation of this blog. Ryanne is a litigation associate at WilmerHale law firm. He would also like to thank his intern Jena Terlip, 2L at Benjamin N. Cardozo School of Law, for her research and editing assistance.

The seventh installment of this 11-part series on basic music industry agreements focuses on the business of live music performances. We will focus on what an indie musician faces when starting out, as well as artists who are more advanced in their careers. We will discuss how it really works in the trenches, and how to navigate over that rough terrain for the best outcomes.

When an indie musician is just starting, playing for no money can be good exposure. Eventually, however, you will want to make money from your music so you can quit your day gig. Live performance is one of the income streams that can support indie musicians, in addition to other streams such as record sales, merchandising, synchronization placements and public performance royalties.

Part I of this blog is for artists just starting out, as well as those emerging as successful live bands or singer-songwriters. Part II discusses artists who are successful enough to work with booking agents, and includes an agreement from a booking agency's standard-form contract with a venue that is designed to be good for the artist and the agent. I add comments showing the changes that the venue would probably request. Part III deals with the way the Internet has converged with live performance to generate new revenue streams for both artists and venues, and includes a new "Revenue Share" program at Smalls nightclub in Manhattan, which offers artists the opportunity to make money by allowing off-site fans to listen to their live performances on demand.


Passing the Hat - Tip Jar

There are many venues--such as small clubs and restaurants--that will allow musicians to book sets and entertain diners or drinkers for free, and then "pass the hat" after their sessions. For tips from Nashville based singer songwriter Jennifer Sullivan ( on maximizing contributions to the "tip jar," see her comments in italics below. Performing in public places for gratuities, such as on the street or in subways, or "busking," is another way to make money from live performance. In fact, New York City has a special program that allows musicians to busk legally. Performers can audition for "Music Under New York (MUNY)" (, an official program that sets up schedules of performances and locations for MUNY members.

Jennifer's thoughts on the tip jar:

"I make an average of $50/hour in tips at these kinds of gigs. (I've never busked, so this only applies to live club performances.) The longer the gig (4 hours is typical for me now) and more frequent (I perform about 5 gigs a week) the better! Here's a few ways I maximize my tips.

1. You can't expect people to come up and give you a tip. Don't be afraid to ask for it! For example, "Thank you guys so much for being such a great audience! I'm going to come around and shake hands, see if you guys have any requests, and pass around this tip jug. This is how I/we make a living on Broadway, so if you like what you're hearing, please show your support and leave a tip, and if you don't like what you're hearing, put some love in the jug anyway and I'll take some lessons!" Usually makes people laugh.

2. Be funny and sincere. If people are being rude/awkward, just make them give you a high five at least and maybe you'll at least brighten their day. People remember things like that, and don't take it personally. Move on to your next fan. Which brings me to...

3. It's important when starting out to use these unpaid gigs as opportunities to make fans. Have an email list, have business cards ready, and make demos of your music. If you have CDs, always take them with you when you pass the hat. People are more likely to buy things they can touch and see. I sell mine for $5, and I notice people end up buying a couple extra to share with their friends. I definitely make extra income at gigs by selling CDs, and people have something to take away with them.

4. Having a CLEAR tip jar is key! Make your own with a gourd or a huge champagne glass or regular old bucket, decorate it, write TIPS on it. Make sure your tip jar is very clear and right in front of the stage, maybe on a stool. THERE IS NOTHING WRONG WITH WORKING FOR TIPS. I even ask for tips at my paid gigs, why not? It helps you make a lot more money, and as indie musicians, we need as much as we can get! But don't be desperate. Be charming, funny, and confident.

5. Last but not least, the MORE songs you know, the better chance you will make good tips. Be humble - if you're starting out and want people to hear your songs, that's great and all; but if you want to be a professional musician, you MUST be a good entertainer. And that means playing cover songs and requests. Know your audience and play to THEM in order to make the most tips. I ask for $20 per request. Know what songs work well with your original repertoire, and know your venue. Cover songs and sing-alongs are a great way to make fans AND tips!"

Dealing with Venues Directly

Beyond passing the hat, there are thousands upon thousands of small clubs in every city (and most towns) that actually charge admission to listen to live music. Some small jazz and singer-songwriter oriented clubs will pay non-established musicians a fistful of cash to show up for an evening (think $50 - $100 for a single musician and $100 to $250 for two or three, plus often a bar tab, and perhaps a free or discount for meals.). Other clubs offer a split at the door (i.e., money from fans who pay to see particular artists). Often they offer 40% to 60% in favor of the artist, and the venue keeps 100% of the revenue from the bar. Some clubs require 100% of ticket sales from the first certain number of people who come to see the band. Other clubs will deduct expenses for such things as sound and amps, in-house production staff, and even refreshments in the green room. If it sounds like this presents opportunities for clubs to be less transparent in paying artists, you would be correct. And if dealing with clubs directly sounds like a tough way to make a living, you would be right. Moreover, some clubs are worse than most, and others are total nightmares for artists. For instance, certain clubs will take a band's credit card at the beginning of the night -- unless a certain number of people pay at an inflated ticket price determined by the venue, the club will charge the band's card to make up the difference. For the details of good, bad, and very bad club deals, read "Should You Pay To Play? The Worst to Best Club Deals In the World" by Ari Herstand ( \. The article is based on a wealth of experience.

Jennifer's comments on clubs that require the artist to sell a minimum number of tickets:

"Okay, fuck this. I hate this style of promoting, it's such bullshit. Unless you are a highly established act, these kinds of performances make no money. Or unless you are with a legitimately good agency, but they don't usually sign you unless you have a proven track record of high profile live performances already under your belt. So getting started, usually how this works:
You want to play at "Darlene's Grocery." Darlene's has a 3rd party booker that books their Friday and Saturday nights, so you contact them. The booker agrees to book you, and your deal is they get the first 10 covers ($10/cover = $100) which they split 50/50 with Darlene's. You make 100% after that, which if you're a new artist just starting out, means you'll probably bring 8 people to pay $10 and you'll make zero money. And you might get one free drink at the bar, if you're lucky. And you'll do this so many times and keep failing and realize that this kind of deal is a waste of time."

Jennifer's comments on whether an artist should ever play for free:

"KNOW YOUR WORTH!!! If you are truly talented, driven, confident, humble, professional, and friendly, you can get paid gigs. Especially if you provide your own little PA / sound system, many dinner places and private events will hire you $300+ to provide your own sound and play for a few hours. Know your CRAFT! You need to be able to play 4 hours worth of original and cover music to be a full time, independent (unsigned) working musician. Until that big break comes along and you get signed and get to just play your music for stadiums of adoring fans, this is how you get started. Working your butt off at gigs. It ain't easy! But don't short yourself on what you can do. If you play an unpaid gig, agree to at least a bar tab and MAKE SURE that the venue has a built-in audience. If they expect you to bring all the people AND not pay you, there's a problem. One way to get around these annoying 3rd party promoters is to find the direct contact to the club and offer them a better deal. Instead of them splitting 50/50 with a booker and the venue only making $50, offer them a 70/30 deal, where at least if you bring $100, instead of seeing 0 you get $25!"


One way a musician can enhance his or her chances of actually making some money--or increasing the amount of money he or she is likely to make--is working with a promoter rather than booking a club directly. This is due to the following:

Promoters know the ropes, meaning they often make better deals for artists because of their knowledge and experience. Venues are more likely to book artists represented by promoters because they trust the promoter's musical tastes from prior dealings and know that the promoters would not waste their time with artists who cannot draw a crowd; most importantly, promoters promote shows -- they use all of their skills and experience to bring the largest possible crowd to their artists' shows.

However, some promoters should be avoided. As Ari discussed with me in correspondence about this blog, there is an "entire new wave of 'promoters' who actually don't promote at all except upload one post on Facebook and rely on the artists to sell all their tickets." Ari also warned about "pay to play" promoters. These promoters require bands to pre-purchase tickets and then they split the money with the venues without guaranteeing any money for the artist. Since the promoter has already made money, there is little incentive for it to do much to promote the show.

Below are two interviews with legit promoters who work with both new as well as emerging artists. Before reading, a word about booking agents: like promoters, they book shows for their musician clients. However, booking agents usually only work with artists who have established followings, whereas promoters such as those interviewed for this blog can help you now.

We start out with an interview with a staffer at an indie promotion company who preferred to remain anonymous in order to provide full disclosure. The second interview is with seasoned promoter (and publicist) Fiona Bloom.

Interview with an Indie Rock Promoter

1SG: Tell us briefly about you and what you do.

I work for a small concert promotion company based in New York City. The company originated due to a growing need for a promoter in the local scene who would work solely on the agenda of nurturing rising talent. Although we work primarily with local talent, we also pride ourselves on having worked with talent both nationally and internationally, including bands from Japan and Sweden.

2SG: In general, what does a promoter do? And how is it different than a booking agency?

A promoter brings a show to the attention of the public and gets people to come by through a variety of means including social media, hand-outs, posters and flyers, and gets media attention and press for the event. A booking agent's main function is to book venues for an artist.

3SG: As a promoter, what unique things do you do for the artists you work with?

My promotion company serves as a platform for local bands to gain greater exposure, and to help those bands play bigger and better shows as long as they are talented and hardworking. The company primarily exposes bands to the music industry, to media, to new fans, and to other great acts in the New York region. In addition to the above, we work with prestigious mid-size venues in Manhattan, such as Gramercy Theatre and Irving Hall, and also promote shows at more intimate venues in Manhattan and Brooklyn.

I am the primary booker and promoter for my company. My role ranges from discovering new talent to serving as the liaison between the venue and the artist. If I decide to organize a show, I am responsible for setting dates with the venue, negotiating financial terms, and making sure the talent shows up on time--whether it's one band or six. I am also responsible for promoting the show on my company's website, on social media platforms, and at the venue. I make sure that all bands are made aware of their responsibilities before the show, including draw requirements (how many tickets they must sell before receiving a portion of the proceeds) and backline provisions (fees that the venue charges for equipment such as a microphone, sound amplification, instruments and security). In addition, I am also responsible for the show running smoothly, which includes handling any problems that may arise during load-in, show time, and load-out. I also "settle up" with the venue--meaning I pay for any expenses incurred, which are always agreed upon prior to the show--and pay remaining monies to my company, as well as to the artists after the show.

4SG: What kind of artists do you work with?

My company strictly books and promotes rock and metal bands. We feel that over the years, a void has grown in the rock and metal genres--at least in New York. So, we strive to support the talented bands pursuing a career in this genre. Our goal is to bring rock and metal back to New York City. My company also mainly works with "baby bands," which usually means they are not yet signed to a label. However, the range of experience these bands possess can vary from the recently-formed to the very experienced. We offer the more experienced bands great opportunities, such as getting them opening-act positions for nationally well-known bands.

5SG: Does your company have contracts with the artists? If not, do you confirm terms by email, or is everything done on a handshake basis?

We do not have formal contracts between the company and our artists. That being said, all of our communications with the artists are confirmed in writing; there are no oral agreements. Issues are avoided by simply making the bands aware of everything in writing ahead of time.

For example, if I were hosting a show, I would secure the talent for that show after securing the venue. This ensures that I will be able to convey, in writing, the requirements to the artists--I let the artists know, in writing, what the venue charges for room rental (if applicable), for sound, for lighting, and for security. I transmit, in writing, all of the expenses up front. That way, I can give the artists a presale arrangement--a ticket amount that the artist should sell prior to the show to ensure expenses are accounted for and to ensure the artist also gets paid. The number of tickets that must be sold presale will naturally vary depending on the price per ticket and the venue. And, for some local venues, the expenses are low enough that presale is not necessary. But in any event, everything will be in writing.

The most important concept to understand is that we maintain close relationships with the bands we work with. My company is not a "one-and-done" promotion company; we often have a continuing relationship with our artists. There are many artists we work with over and over again because they are hardworking, talented, and we have a mutually beneficial relationship with them. A certain level of trust is built so that a formal contract becomes unnecessary. While the same cannot be said for a band we are working with for the first time, we are still able to avoid misunderstandings by having everything in writing.

I think it's important to point out that we never require bands to work with us exclusively. In fact, we encourage bands to work with multiple local promotion companies. This will give the bands greater exposure. The only requirement we have regarding exclusivity is we ask that the band have at least three weeks of down time in between shows. For example, if Band X plays a show in NYC with another promoter on Week 1, we will not book Band X to play one of our shows in NYC until Week 4.

6SG: Same question regarding venues.

We usually do not have formal contracts with the venues, but, similar to when we work with artists, there are almost always emails confirming all terms. When working with smaller venues, all expenses are laid out when we secure the venue for the show date. This usually occurs two to three months before the show for a smaller venue, and four to five months in advance of a larger show. All communication with the venue is in writing, and we determine how much it will cost to rent the venue and how much it will cost for venue staff (i.e., lighting, security, door person). During these communications, we also negotiate whether or not there is a bar guarantee for the venue, meaning the minimum amount of money the bar has to make for the night. This is important because we often host shows on weekend nights, which can often result in a high bar guarantee ($1,500 to $3,500 for the evening). If we are not prepared for this, it is very easy to fall into a situation where the bar guarantee is not met by audience consumption and we end up having to pay the remainder out of pocket.

This leads me to discuss the reason local bands feel it is useful to have a promotion company running the show. Promoters are the cost-bearers. Anything and everything that could go wrong with a show and result in costs incurred gets placed directly on the shoulders of the promoters. Therefore, if bands decide to organize a show without a promoter, the bands can often incur these expenses and make very little money, if any, by failing to ask the venue the right questions. For example, there are many local bands who have fallen prey to excessive bar guarantees because they just didn't think to discuss with the venue whether or not a bar guarantee exists and who bears the cost of paying off the remainder if the minimum is not met. The promoter is the advocate for the artist by knowing the right questions to ask and negotiating a fair deal.

7SG: Can you tell us about the money--what the venue gets, what the artist gets and what the promoters take?

We typically make 40% of sales at the door, after expenses. The artist gets the other 60%. If the show is a flop, we ensure the bands get paid or at least don't wind up owing money to the club, and we bite the cost and pay the club the unrecouped expenses.
Our larger shows work in a similar manner--the company will only get paid after the venue's expenses are paid. Typically, we retain a 40% profit for these shows as well, and the artists receive 60%.

What the artist will actually make varies depending on the show. At a small local show (think "dive bar") expenses for the venue range from $250 to $350. Let's assume the expenses are $250, at $10 per ticket; thus, a band has to sell more than 25 tickets to break even. If they don't, neither the band nor the promoter gets paid. A band in the headlining slot(s) will generally sell around 35 tickets, and that may generate $400. But due to expenses there is no guarantee they will actually make money, and this is always conveyed to the bands before they agree to play a show.

At a larger show at a mid-size venue, the payouts are better because ticket prices are higher and more tickets are sold. Presale requirements for this type of show range from 75 to 200 depending on the band's slot in the show. At this type of show, the opening and closing bands will usually make $300 to $400 for the night, direct support bands will make $400 to $600 for the night, and the headliner will make $800 to $1,000 for the night.

When there is a promoter on the show, the venue does not pay the artist. The promoter(s) receive the payment for the show, then must distribute the payment to the artists, and then finally gets to pay itself.

8SG: Tell us about Sponsorships. Can an artist make more money if you get a sponsor?

Everyone makes more money with sponsors, but they are very hard to secure and my company has not been able to work with them in a long time.

I do know that securing a sponsor for the show results in a huge increase in pay to the bands. The amount of the sponsorship will depend on (1) the size of the venue, (2) whether the venue has an existing arrangement with the sponsor's brand, and (3) whether there is a requirement for a certain amount of product to sell at a show, along with varying other factors. Nevertheless, a sponsorship can really make or break a show. For example, most music festivals are only able to exist because of arrangement with one or more sponsors.

9SG: If you do get sponsorships, do you do contracts or just an email correspondence confirming terms?

As I said the company hasn't worked with sponsors in a long time so I don't have personal knowledge whether there were any contracts.

Interview with Fiona Bloom

1SG: Tell us briefly about you and what you do.

I own a branding/PR agency called The Bloom Effect--we offer a plethora of services including social media, publicity both traditional and digital, international consulting, event promo, product launches and shopping artists to record companies and publishers. Our specialty is looking after international acts in the U.S, and also giving them a platform for their debuts and performances.

2SG: In general, what does a promoter do?

A promoter should wear many hats. We work to secure talent, which initially involves researching and being "up" on all the hottest bands, as well as knowing the competition and what's happening in the music scene during the timeframe we're looking to bring in an act. We also publicize and promote talent via the usual methods of general publicity--print, digital, radio, local tv and social media--as well as create some visuals for the show or tour.

Promoters should also do text campaigns, email blasts and newsletters to their network or following to promote the show. In addition to this, my company offers ticket giveaways to radio stations and blogs, and allows for guest lists for VIP's and industry personnel where applicable. Furthermore, we work with other organizations to insure more ticket sales and the overall promotion of the venue and of the show.

A good promoter should have access to all venues and contacts in the various markets where they work. They should also have great relationships with artist managers, agents, and other live promotions companies. Great communication skills and the ability to follow-up with and maintain relationships are also key.

Personally, I work with all kinds of artists and in all genres of music. In fact I always like to say there are two genres--Good and Bad, and I work with the Good! Promoting has made my life more colorful, and there's variety to everything I do; I never treat any two projects the same. There is a set template of doing things, but the formula and ingredients change.

3SG: When you act as a promoter, what unique things do you do for the artists you work with?

Let's just say that in #2 I answered that because probably most promoters don't go all out like I do.

4SG: What kind of artists do you work with?

I try to work with great artists. The artists I work with must be very original, and they have to be pretty amazing live! Everything from DJ's to R&B, Hip Hop, Soul, Rock, Reggae, Folk, and Jazz--I've done it all, and I love all genres and all styles.

5SG: Does your company have contracts with the artists? If not, do you do email correspondence confirming terms or is everything done on a handshake basis?

It depends on the work. If I'm producing several shows with an artist then yes, we have contracts with the artists. If it's a one-off then we generally have an invoice for my services or an email confirming all of the terms for my services.

6SG: Same question regarding venues.

With the venue I have an offer sheet with all of the terms completely laid out with backline, tech riders, comps, guarantee versus door, bonus after X amount of revenue reached, the merchandising agreement, and anything else discussed.

7SG: Can you tell us about the money. Do you put up money to rent venues? Do you pay for any expenses such as travel or equipment rental? Do you work on a flat fee basis or a percentage? How much money does the artist make - if it's a percentage, what is the percentage? And what is it a percentage of? For instance, is it a percentage of ticket sales? How much does the venue make?

I try not to put up my own money. If there's costs involved, I work with vendors or sponsors who will pay for them, or an investor who takes it off the back-end. Sometimes we pay for hotels, MC's to host the show, and some equipment--although I like to get the equipment donated by the brand.

Depending on the specific deal and its outcome, I work on either flat fee or a percentage. However, I prefer the former.

The Artist either makes their guarantee, which can be anything you worked out beforehand that makes sense with the size and capacity of venue, or a percentage, which is usually anywhere from 60% to 75%, or on rare occasions, 80% of door. This percentage is compiled from ticket sales minus any venue expenses such as sound and/or security and backline costs. It all depends on what kind of deal and the sorts of terms you have.

The venue generally doesn't survive off of door sales, which are generally considered "extra" for them. Rather, the venue makes their money from the liquor, bar, and food costs for the night. Promoters and artists do not share in these costs.

8SG: Do you ever get sponsorships for shows? And if so how do you find them, what do they want from the artist or the show, and what are they willing to pay?

Yes, I love having sponsors. They help with financial costs and expenses as well as promoting the show, creating fliers and posters for the show, and the like.

I find sponsors by contacting like-minded brands. By "like-minded," I mean brands that attract the same demographic as the artist I am working with, have a "hipness factor" with said demographic, and who have worked in the area where the show will be held. By doing this, we can capitalize off of the good will, history, and interests of the brand.

I find these brands by researching them online (namely their Twitter, Facebook, or LinkedIn profiles), or through industry contacts, conferences, and referrals. Usually the brands want the artist to promote their shows hard, shout out the brand's name a few times, and, if the brand is clothing, shoes, or liquor, to wear the brand. Brands and sponsors can pay up to $5,000 or more a show; it depends on the market, the show's date, and how big the audience will be.

9SG: If you do get sponsorships do you do contracts or just email correspondence confirming terms?

Any work I do with sponsors will definitely be contractual. These are professional businesses we're dealing with who are a lot more conservative than the music industry. Thus, the agreements are always formal.

10SG: How can potential clients get in touch with you?

I'm always open to receiving new clients and it's very easy to get in touch. Find me on I can also be contacted directly at
I'm open to phone, and potential clients can get in touch with me at 646-764-0004. Finally, I'm all over social media @fionabloom.


As noted above, booking agents work almost exclusively for artists with established followings. To do this, they usually negotiate with in-house "talent brokers" at the venues. Generally, booking agents negotiate a guaranteed amount of money for their artists, and the artist will occasionally earn more if they sell more than a certain number of tickets. Pasted below is a booker's standard agreement with venues. The italicized comments explain how the agreement is favorable to the artist and the changes that a venue will usually request.


Date: October 1st, 2015
THIS CONTRACT for the personal services of the entertainer(s) on the engagement described below is made between the undersigned Promoter of Entertainment (herein called "Promoter") and the Artists' Representative (herein called "Agent"), designated below.

Promoter: ________, Hong Kong

Agent : _____ , NY, NY USA

The Artist is engaged in accordance with the terms and conditions on the face hereof. The Artist, by its undersigned leader, represents that the Artist has agreed to be bound by said terms and conditions. Each member of the Artist may enforce this agreement.

1. Artists, Place and Dates of Engagement:
[Name of Artist]
Place: TBD-¬‐
Date: December 19th, 2015 4:30 pm and 8:00 pm (two shows)
* Hours of Engagement: 100 minutes.
The venue would probably want to clarify that each show will be 100 minutes.

2. Compensation and Payment terms: The total compensation for services of the Artist
and flight travel expenses for the above is USD$35,000 (this is the net amount, free of taxes)

The initial deposit of US $17,500 is due upon signing the contract (non-¬‐refundable), No later than October 10th, 2015 to purchase air tickets to and from Hong Kong.
And the Balance of $17,500.-¬‐ is due on December 1st, 2015.
The Promoter will insist that the second payment will be contingent upon the Artist actually showing up and playing the gigs. So they will insist on changing December 1st to December 19th and specify that the second payment will be paid upon completion of the second show.

Payment must be made in cash or certified funds. If payment is not made as provided herein, Promoter is responsible for all costs and expenses, including, but not limited to, attorneys' fees and legal expenses incurred by the Artist in collecting the amount owed, whether or not suit is commenced. Said costs, expenses and attorneys' fees shall also include without limitation any such costs, expenses and fees in any proceeding under any present or future bankruptcy act or state receivership.

The Promoter would probably request an additional provision along the following lines: "If, for any reason, Artists cannot or does not perform due to no fault of Promoter, Artists shall refund the initial payment to Promoter no later than December 20, 2015."


Please wire transfer the Deposits to the following account.

Account Name: ______
Bank Name: ______
Account Number: ________

3. Additional Terms and Conditions:

Promoter Agrees to Pay and Artists Rep. Agrees to ACCEPT the Guarantees set forth in this contract, plus, Artists Rep. also agrees to pay AIRFARES for all its members and crews of the ARTISTS.
The Promoter will want to clarify the exact additional amount that it will have to pay for the Artist's band, and it will want to know exactly what "crew" are coming and the reason for them coming at all.

Promoter agrees to provide First Class HOTEL accommodations, plus INTERNAL Ground. Hotel requirement details will be provided later.
The contract should make clear that this is for two nights. That clarification would be for the benefit of both parties, as it would avoid misunderstanding and a possible dispute.

Promoter shall provide and pay for First Class Sound and Lights, First Class Backline, and Any and All Rider Equipment.
Artists shall arrive in Hong Kong, no later than December 18th 2015. (Detailed Travel itinerary will be available on a later date)

4. Cancellation: Except as provided herein, this agreement may not be canceled for any reason or at any time by Promoter. Payment is due according to the payment schedule set forth above even if the event for which the Artist was retained is canceled for any reason. Promoter understands that this is a personal services contract and the Artist will not be offering its services to anyone else for the hours on the date of the engagement set forth above in reliance on this agreement to perform for the Promoter.
The venue will insist that the Artist cannot cancel the performance, and that if the Artist fails to perform for any reason, he or she will not be paid the second payment.

5. It is agreed and understood that the Promoter shall be responsible for the safety and security of the Artist and the Artist's representatives, crew, guests, their baggage and equipment for the duration of the engagement.
The venue will insist that the Promoter is not responsible for the actions or omissions of 3rd parties. So if a cabdriver gets the Artist into an accident, the Promoter can be held responsible

6. All artwork and/or use of the Artist's name/likeness is to be approved by the Artist.
The Promoter may want to insert a clause that if it provides artwork for the Artist's approval and the Artist does not notify the Promoter of disapproval within a certain number of days, approval may be assumed.

7. It is agreed and understood that this contract is only binding for a live performance. The ARTIST reserves the right for his/her merchandise and any other rights outside the field of live entertainment including without limitation any so-¬‐called audio records (in whatsoever formats) and/or audio visual devices (in whatsoever formats) embodying the Artist's performance whether in whole and/or in part.

8. It is agreed and understood that the Promoter shall provide and pay for all catering requirements for the band and crew. Artist/Artist's Tour Manager will advise Promoter of these requirements.

9. The Promoter agrees to provide, pay and be responsible for all visas, work permits, driving permits and other documentation, including payment of visa consulate fees that are necessary for the Artist to undertake the engagements herein. Any payments due are to be paid directly to the Artist or as advised by the Artist's Tour Manager. Once all the documents are prepared by the Promoter. It is is the Artist's responsibility to apply and obtain the visa stamps at the consulate in his/her own country of domicile.

10. Relationship: The Artist is retained by the Promoter only for the purposes and to the extent set forth in this agreement, and the Artist's relationship to the Promoter during the period of their engagement shall be that of independent contractors and not that of Employees of Promoter for any purpose whatsoever.

11. Jurisdiction: In accordance with the laws of the State of New York, the parties will submit every claim dispute, controversy or difference involving the entertainment services arising out of or connected with this contract and the engagement covered hereby for a determination and said determination shall be conclusive, final and binding upon the parties. In connection with the foregoing, the parties do hereby consent to the jurisdiction of the courts of the County of Manhattan, State of New York, USA.
In this case, the Promoter is in Hong Kong, and will probably argue that the jurisdiction and governing law should be changed to Hong Kong, as it is putting up the money for the Artist.

12. Recording: No performance or engagement shall be recorded, reproduced or transmitted from the place of performance in any manner or by any means whatsoever, in the absence of a specific written agreement with the Artist relating to and permitting such recording, reproduction or transmission.

13. Force Majeure: If a performance is prevented, rendered impossible or infeasible, by sickness, inability to perform, any act or regulation of any public authority or bureau, civil tumult, strike, epidemic, interruption in or delay of transportation services, weather, war conditions or emergencies, or any cause beyond the control of Artist, it is understood and agreed that there shall be no claim for damages by either party to this Agreement and Artist's obligation as to such performance shall be deemed waived. Provided, however, if such inability is caused or contributed to by Promoter, Promoter's obligation to make payment as provided in paragraph 6 above shall not be waived and Promoter shall be liable for the amount due and owing Artist.

14. Indemnity: Promoter agrees to indemnify, defend and hold the Artist harmless from and against any and all claims, costs or liability for damage, injury to any person or property during Artist's engagement, including time of set up and take down.
The Promoter will want the indemnity to be mutual.

WHERE AS, the AGENT, in signing this contract himself, or having same signed by a representative, acknowledges full authority and responsibility to do so and thereby assumes liability for the amount stated herein. and NO deposits will be returned.

WHERE AS, the Promoter shall conduct all its official communication to the Artist through the AGENT.


PROMOTER: ______

Authorized signatory

AGENT ______

Authorized signatory


Part III deals with the way the Internet has converged with live performance to generate new revenue streams for both artists and venues. As an example, we will focus on the new "Revenue Share" program at Smalls nightclub in Manhattan, which offers artists the opportunity to make money by allowing off-site fans to listen to their live performances both simultaneously and on demand.

Immediately below is my interview with owner Spike Wilner. The interview took place in 2014 and originally appears in the fourth edition of my book, The Future of the Music Business (Hal Leonard 2015,\). In fall 2015, Spike launched the Revenue Share program. Following the interview is the actual contract that we drafted to implement the Revenue Share program.

Interview With Spike Wilner, Jazz Pianist And Co-Owner Of Smalls Jazz Club In NYC

Spike Wilner is an accomplished jazz pianist and the co-owner of SMALLS Jazz Club in New York City's Greenwich Village. He also has been using the Internet to expose the artists who play at SMALLS and their music to a worldwide audience by simulcasting live shows every night (click on "live video" at In addition, over seven years ago, he started creating an archive of recordings of the live music performed at the club. This interview provides Spike's experience with expanding SMALLS' audience by using the Internet, at he plans to do next, and his vision of the future.

SG: Give us a brief description of what happens at SMALLS, that is, the music and the artists featured there and what folks can expect if they visit the club.

SW: Smalls Jazz Club is generally open from 4:00 PM to 4:00 AM, with some exceptions. Normally we have 3 bands per night. We do two, two-set shows and then an "afterhours" set and then a jam session at the very end. Jam sessions are an important part of Smalls and there's traditionally a jam every night of the week quite late (sometimes not even starting until 2:00 AM). We also have afternoon jam sessions on Friday and Saturday. On Wednesday in the afternoon we host a tap dance jam session and the tap community comes out for that. On Wednesday and Thursdays we do a 9:30 PM "main show" which usually feature an important or famous musician or band. The same on the weekend but it starts at 10:30 PM. Our "afterhours" shows start either around midnight or 1 AM and are all seasoned veteran players hosting. Sundays we are open all day with a vocal workshop at 1PM, a showcase show at 4PM, a duet show at 7:30 PM and then at 10PM we have the legendary Johnny O'Neal who is in a permanent residence with his trio.

Smalls has a "no reservation" policy, first come first serve. Our cover is $20 until afterhours and then it's $10. We have a one-drink minimum for those seated or at the bar but standers in the back don't have to buy a drink. It gets crowded and the vibe changes as it gets later. The afterhours is the coolest vibe and not for everyone. But the music is always great at Smalls, from the beginning of the day to the end.

SG: You have been experimenting for some time now with harnessing the power of the Internet to create a broader audience for the music and artists who play at SMALLS. You are now simulcasting every show at SMALLS on the Web. Tell us more about your live simulcast including how you implement it, how many people are tuning in and the feedback you have been getting from fans and the artists themselves.

SW: I remember in my Jazz history that John Hammond, the great record producer, was driving to Chicago when he picked up a radio broadcast live from a Jazz club in Kansas City. The music blew his mind and he turned his car around and drove to Kansas City to sign whomever the artist was. It turned out to be Count Basie and the rest is history. What fascinates me about that story is the idea of a club putting a radio wire to transmit to the world. I wanted to do this and used the Internet. We started live streaming about seven years ago with a very simple system. As the years progressed, the technology for live streaming has grown in leaps and bounds. Now it's possible for anyone to very inexpensively create their own "television studio". We began to generate an enormous audience world wide, with Jazz fans checking in from literally all parts of the globe. I was in Italy last year and it shocked me how famous Smalls has become internationally. I attribute this to the Internet and doing a live broadcast every night of the week. The other thing is, I'm an archivist and firmly believe that the music being played nightly at Smalls will be of historic importance to future generations. Therefore my mission has been to record every single show and have it organized by a date, who the leader was and who was on the date. First thing I did was to install a recording device and began recording. This has evolved over the last seven years but we are currently up to about 8000 recordings in our library, which now includes our HD video.

SG: Recently you had a crowd funding campaign. What were your goals, did you succeed and what challenges did you face?

SW: Our goal with the crowd funding campaign was to raise money for new equipment for our live streaming (ie computers and cameras) as well as to buy a new piano. We were successful in this and hit our goal. We did buy a new Steinway for the club and installed an entirely new and up to date streaming system and in-house recording studio.

As far as the crowd funding experience - my thoughts are that it is a terrible way to fund a business. For one thing, you tap the good will of everyone that likes or supports you. Secondly, you can't do it again - it's a one-time shot. The other thing that nobody talks about is that if you do get your money there this huge tax liability at the end of the year in the form of a 1099. If you don't properly prepare for that and spend all the money then you're going to get hit. Furthermore, Indiegogo took a big chunk in fees. I don't like crowdfunding and hope it's just a passing fad.

SG: I understand that you would like to use the Internet to monetize your archive of recordings of the shows performed at the club in the last 7 years and share revenues with the artists.

SW: My idea is to build a website platform where we can disseminate our huge library of recordings and videos. This has proved more complex and expensive than I had planned. The plan is to do a full revenue share with all of the artists that are in our archive. We want to charge a small subscription rate for fans to access our ever-growing library. The revenue from the subscriptions is pooled and distributed to artists based on how much their work gets listened to. The more popular an artist is, the more they make - law of the jungle economics. This is a big system and what I realized I had to do and have since done is taken on partners to make SmallsLIVE LLC real. I've since partnered with two guys, one is a man who is a programmer and has his own successful website development company. The other partner is an investor to finance the building of this site. Once the site is up and launched we will be able to use it to accommodate an entire range of related media projects including our live stream and video library, as well as educational videos, downloads and merchandise.

SG: You now have over 4000 subscribers on your YouTube channel, and over 34,000 Facebook fans. What other social networks do you use? How much work does it take to maintain engagement with your fans through them, and is it worth it?

SW: We were, at first, excited about YouTube. It seemed amazing that you could have a CDN [Content Delivery Network] host your live stream for free. Well, it's not really free in the sense that you don't have real control over the content that you stream. YouTube screens your video and scans for illicit use of copyrighted material. In our case, when we play our iPod on breaks, we get flagged even though we are paying for the right to publicly perform that music to the appropriate music collection societies. But if you get flagged, YouTube will not allow you to stream any music including our live performances. It's was a headache. On the other hand, it's very affordable to rent time on a good CDN such as Bit Gravity. Then you have full control of your stream and the content that you're creating.

We have a large fan base on Facebook and also Twitter. We also have a rapidly growing email list and regularly do a newsletter and post to our social media. Facebook is great because it's very affordable to use and reaches a lot of people who you know are already interested in what you're doing.


This Agreement (the "Agreement") is between SmallsLIVE LLC ("SmallsLIVE") and you in regard to the SmallsLIVE Archive and the Artist Revenue Share Project.


By accepting this Agreement, you also agree to SmallsLIVE's Terms of Use as they appear in the Site (as defined below). Should you have any questions concerning these Terms of Use or need technical support, you may contact us at


The Archive:

The SmallsLIVE Archive (the "Archive") consists of audio and audiovisual recordings (videos) produced by SmallsLIVE at the Smalls Jazz Club in the past (since 2007), now, or in the future.

Users of the SmallsLIVE's website ("Site") can access the Archive as subscribers ("Subscribers") and play (stream) the individual sets of multiple, combined musical performances ("Dates") by an individual artist and/or group ("Artist"). The Date may be audio only and/or audiovisual, and the embodiment of the Date in an audio or audiovisual medium shall hereafter be called the "Recording." Subscribers will pay SmallsLIVE a monthly subscription fee (the "Subscription Fee"), to be determined by SmallsLIVE. Subscribers will also have the option of downloading individual, artist approved, tracks embodied in the Recordings of each Date ("Tracks") for an additional fee to be determined by SmallsLIVE and sold as SmallsLIVE TRACKS.

Subscription fees will be placed in a revenue pool to be distributed to the Artists as specified in Paragraph 4 below ("Revenue Share"). Monies received by SmallsLIVE TRACKS from downloads of Tracks shall also be subject to the Revenue Share set forth in Paragraph 4 below.

Your approval of this Agreement applies to any Date past, present, or future in which you participated or will participate as a Leader or as a Side Musician as those terms are defined below.


LEADERS & SIDE MUSICIANS: Each Date must have a designated leader ("Leader"), provided that in the event of a collective band, each member may be designated as a Leader. Any musician who plays on a Date who is not a Leader shall be deemed to be a "Side Musician."
PERFORMANCE FEE: The Leader is paid a performance fee for the Date at Smalls Jazz Club, under a separate booking agreement.
COPYRIGHT IN THE RECORDINGS: Except for SmallsLIVE's right, subject to paragraph 2(g) below, to include the Recording of each Date in the Archive as set forth herein the Leader of each Date shall retain all right, title and interest in and to each Recording including the copyright in the "sound recording" (as defined in the Copyright Act) in the Recording, and all renewals and extensions thereof, worldwide and for the full duration of the copyright. To effectuate this intent, SmallsLIVE and each Side Musician hereby transfer their interest in the copyright in each Recording to the Leader, including without limitation the authority to distribute or otherwise exploit each Recording as set forth in more detail in subparagraph 2(d) below. For avoidance of doubt, nothing in this Agreement will transfer the ownership or copyright in any underlying musical composition embedded in any Recording.

LEADER'S RIGHT TO EXPLOIT THE RECORDINGS: The Leader may use the Recording for any commercial or promotional purpose, including without limitation the right to sell, license or otherwise exploit the Recording or any portion thereof. The Leader shall have the exclusive obligation to make any payment required to the Side Musicians or any third parties, including any third party writers or owners of musical compositions. For the avoidance of doubt, SmallsLIVE shall not be responsible for any payments to or permission from any Side Musicians or any third parties.

ARTIST ACCOUNT: Every Leader and Side Musician will have an account (accessible by password) on the SmallsLIVE Site. From this account page, Leaders will be able to download their Recording(s) for personal use or commercial exploitation in accordance with Subparagraph d. above. Leaders may also use their account to "tag," i.e. add, the name of any Side Musician in regard to a Date for which SmallsLIVE inadvertently omits that Side Musician's name. Leaders and Side Musicians may also use the account to update personal info such as address, telephone, email, etc. Leaders and Side Musicians will also be able to set up their banking information to receive royalty payments from Subscription Fees and paid downloads and to see SmallsLIVE's metrics on usage and payout dates.

LEADER'S RIGHT TO KEEP DATES PRIVATE: Every Leader shall have the right to use his/her account to control which Recordings of Dates can be public, that is, accessed by Subscribers, and which Recordings of Dates shall remain private.

EDITING: Leaders shall have the right to "edit" their Recording(s) provided that any such edits shall be at their sole expense. SmallsLIVE is not responsible for editing, mixing and mastering of any Recording unless it is previously determined by SmallsLIVE and the Artist that the Date shall be a special project ("Special Project"). Special Projects are outside the terms of this Agreement and shall be subject to terms to be negotiated separately.

EDITED DATES: Leaders may "resubmit" their edited Recording for active use in the Archive, provided that the edited Recording must be a minimum of 20 minutes in length and must consist of at least two songs.

PAST DATES: You hereby agree to all the terms and conditions in this Agreement with regard to Recordings of Dates occurring prior to the date that you enter into this Agreement.

AUTHORIZED PAYEES: You shall have the right to assign your right to receive any income to you under this Agreement to any third party such as a business manager. Such authorization must be made in a writing signed by you and delivered to SmallsLIVE by certified mail. In case of your death or disability, monies earned under this Agreement shall be paid to your duly authorized representative after that representative has adduced any required legal documents confirming their authority.


SmallsLIVE is hereby granted the non-exclusive perpetual right to include in the Archive any Recording of any Date in which the Leader or Side Musician participated or will participate in the future subject to the Leader's right to keep the Recording of any Date private in accordance with Subparagraph 2(g) above.

SmallsLIVE is hereby granted the right to live broadcast ("Webcast") each Date on the Site or any third party website or digital platform one time live and once as a rebroadcast. After that, a Recording of the Date, in Video/Audio will be added to the Archive for Leader's approval and use. SmallsLIVE shall have the right to make the Webcasts available for no charge to viewers or Subscribers, and to include advertising and accept sponsorship in conjunction with the Webcasts and the Videos.

No Leader or Side Musician may use "Smalls," "SmallsLIVE" or any logo or other mark associated with SmallsLIVE or Smalls Jazz Nightclub, in connection with the promotion, sale or license of any Recording, without the express prior written permission of SmallsLIVE.

You hereby give SmallsLIVE the right to use your name, image, likeness, and approved bio in the Site in connection with your Recordings, Webcasts and Videos, and in any advertising, promotion or marketing of such Recordings, Webcasts, Videos, the Site or the Archive.

Subscription revenue share & SmallsLIVE Tracks

Subscription Fees

All Subscription Fees collected from Subscribers for access to stream (but not download) the Archive shall be shared on a 50-50 basis between SmallsLIVE, on the one hand, and the Musicians (whether Leader or Side Musicians), on the other hand, after the deduction of operational Expenses (as defined below). All fees will be placed in a Revenue Pool.

The Musicians' share of the Revenue Pool will be determined by the number of minutes that the Recording of each Date is streamed within a pay period (either bi-annually or quarterly, to be determined by SmallLIVE). Each Musician who plays on any Date, whether as a Leader or as a Side Musician, will be credited the number of minutes that Subscribers listen to the Date(s). Musicians must be "Tagged" on the date to be credited with the Minutes. It is the responsibility of the Leader to tag all the Side Musicians on a date and the Side Musicians' responsibility to see that he or she does so.

The formula for determining a Musician's share of the Revenue Pool is:

Total Individual Musicians Minutes divided by the Total Archive usage minutes.
If, for Example in one three month period (pay period):
Peter gets 350 minutes listened to for all his dates in the Archive as Leader or Side Musician
Stacy gets 5000 minutes listened to for all of his date in the Archive as Leader or Side Musician
Grant gets 700 minutes listened to for all of his dates in the Archive as Leader or Side Musician
Tuomo gets 950 minutes listened to for all of his dates in the Archive as Leader or Side Musician
Miki gets 1200 minutes listened to for all of his dates in the Archive as Leader or Side Musician
Spike gets 30 minutes listened to for all of his dates in the Archive as Leader or Side Musician
Adding all these minutes together yields the Total Archive Usage, which in this example equals 8230 minutes.

To calculate the pay percentage attributable to each Musician ("Pay Percentage"), you must divide the individual minutes by the total usage.
Peter = .0425 (350/8230)
Stacy = .6075 (5000/8230)
Grant = .0851 (700/8230)
Tuomo = .1154 (950/8230)
Miki = .1458 (1200/8230)
Spike = .0036 (30/8230)
Payout = Revenue Pool Total X Individual Pay Percentage
Each Musician is paid an amount equal to the total amount collected from Subscription Fees (Revenue Pool) multiplied by his or her Pay Percentage.
If, by example, the Revenue Pool for the pay period is $500 then the payments would be:
Peter = $21.25 (500 X .0425)
Stacy = $303.75 (500 X .6075)
Grant = $42.55 (500 X .0851)
Tuomo = $57.70 (500 X .1154)
Miki = $72.90 (500 X .1458)
Spike = $1.80 (500 X .0036)
Use of the Archive will be measured in minutes rounded downward. For example, if a Subscriber listens to a Date for ten (10) minutes and thirty (30) seconds then Artist would be credited with 10 minutes.

Paid Downloads (SmallsLIVE TRACKS):

SmallsLIVE TRACKS is an Artist Curated Store for licensing and selling for download any Track(s) Leaders designate from their Archive recording. Any Leader of any Date may choose individual Tracks embodying one song to make available for paid download to Subscribers. Artist may edit the track themselves or ask SmallsLIVE to do so. Artist must provide Title, Composer and Publishing information. The MP3 will be offered to Subscribers at a price to be determined by SmallsLIVE in consultation with the Leader. The area of the site where such downloads will be available shall be called "SmallsLIVE TRACKS," although this name is subject to change in the discretion of SmallsLIVE.

SmallsLIVE shall share any monies it receives from such downloads with the Leader on a 50-50 basis after deducting any transaction costs.

The Leader shall be responsible for making any required payments to the Side Musicians, for mechanical royalties, or to any other necessary third parties.

The Revenue Share set forth in Subparagraphs 4.a and 4.b above, shall be the total compensation payable by SmallsLIVE for the rights granted under this Agreement.

SmallsLIVE retains the right to not publish a track for any reason and maintains the final decision on tracks placed in the SmallsLIVE TRACKS store.


SmallsLIVE will be allowed to deduct the following expenses from Subscription Fees:

Transaction costs (for examples, PayPal or credit card fees);
Licensing fees payable to performance rights organizations;
Hosting and bandwidth fees; and
Sales and local taxes, and other applicable taxes, levies or fees.
Other fees that may in the future become required for the continued operation of the streaming and download services set forth in this Agreement, including without limitation any fees to third party rights-holders.


Each Artist who receives any monies under the Agreement shall be solely responsible for paying any applicable taxes.


SmallsLIVE shall make payments to each Artist on a calendar quarterly basis 30 days after each quarter. Such payments shall be made by check or automatic deposit at the election of the Artist.
Notwithstanding anything to the contrary above, SmallsLIVE shall have no obligation to make a payment to an Artist if the amount due is less than ten dollars ($10) provided that when such monies exceed ten dollars ($10) any monies withheld will be paid after any pay period in which the total amount due to the Artist exceeds ten dollars ($10).

Every Musician will have access to on-line accounting pages by using a password to be assigned by SmallsLIVE. The accounting pages will set forth the amounts that have accrued for the Musician.


At any time within two (2) years after any payment is received by any Leader or Side Musician hereunder, that Leader or Side Musician shall have the right to give SmallsLIVE written notice of their intention to examine SmallsLIVE's books and records with respect to such statement. Such examination shall be commenced within one (1) month after the date of such notice, at the sole expense of such Leader or Side Musician, by any certified public accountant or attorney designated by such Leader or Side Musician, provided he or she is not then engaged in an outstanding examination of SmallsLIVE's books and records on behalf of a person other than such Leader or Side Musician. Such examination shall be made during SmallsLIVE's usual business hours at the place where SmallsLIVE maintains the books and records which relate to such Leader or Side Musician and which are necessary to verify the accuracy of the statement or statements specified in the notice to SmallsLIVE and the examination shall be limited to the foregoing. A Leader or Side Musician's right to inspect SmallsLIVE's books and records shall be only as set forth in this subparagraph and SmallsLIVE shall have no obligation to produce such books and records more than once with respect to each statement.

Unless notice shall have been given to SmallsLIVE in accordance with subparagraph above, each payment rendered to Artist shall be final, conclusive and binding the Artist and shall constitute an account stated. Artist shall be foreclosed from maintaining any action, claim or proceeding against SmallsLIVE in any forum or tribunal with respect to any payment or accounting rendered hereunder unless such action, claim or proceeding is commenced against SmallsLIVE in a court of competent jurisdiction within three (3) years after the date such payment is received by Artist.

Artist acknowledges that SmallsLIVE's books and records contain confidential trade information. Neither Artist nor Artist's representatives will communicate to others or use on behalf of any other person any facts or information obtained as a result of such examination of SmallsLIVE's books and records, except as may be required by law or judicial decree.


SmallsLIVE's non-exclusive rights as set forth herein shall be perpetual and shall extend throughout the world. You shall have a right to terminate this Agreement in regard to your grant of such non-exclusive rights upon notice of three months (3) months for future Dates only provided that SmallsLIVE reserves the right not to book you for future Dates. SmallsLIVE reserves the right to take down any Date from the Archive.


You warrant and represent that:

You are under no disability, restriction or prohibition, whether contractual or otherwise, with respect to (A) your right to enter into this Agreement, and (B) convey the rights granted to SmallsLIVE hereunder, to perform each and every material term and provision hereof, and to record each and every musical composition hereunder;

To the extent of your contributions hereunder, SmallsLIVE shall not be required to make any payments of any nature for, or in connection with, the acquisition, exercise or exploitation of rights granted to SmallsLIVE by you pursuant to this Agreement, except as specifically provided in this Agreement;

To the extent of your contributions hereunder, neither the Materials (as defined immediately below) nor any use of the Materials by SmallsLIVE will violate or infringe upon the rights of any person. "Materials" as used in this subparagraph means any musical, artistic and literary materials, ideas and other intellectual properties furnished by you, including any copyright, trademarks or rights of publicity contained in or used in connection with any Recordings made hereunder, which have not been supplied by the SmallsLIVE. Among other obligations, you shall not sample any third party work without the express written approval of SmallsLIVE;

All of your representations and warranties shall be true and correct upon execution hereof, and shall remain in effect in perpetuity. SmallsLIVE's use of Recordings or Materials hereunder shall not constitute a waiver of any of your representations, warranties or agreements in respect thereof.

You shall at all times indemnify and hold harmless SmallsLIVE and any licensee of SmallsLIVE from and against any and all third party claims, damages, liabilities, costs and expenses, including legal expenses and reasonable counsel fees, arising out of breach by you of any warranty, representation or agreement made by you herein.

SmallsLIVE warrants and represents that:

SmallsLIVE is under no disability, restriction or prohibition, whether contractual or otherwise, with respect to its right to enter into this Agreement, and to perform each and every term and provision hereof;
All of SmallsLIVE's representations and warranties shall be true and correct upon execution hereof, and shall remain in effect in perpetuity.


SmallsLIVE shall only stream (in terms of the Archive) and sell downloads (in terms of SmallsLIVE TRACKS) exclusively from the SmallsLIVE website ( SmallsLIVE shall have no right to assign, transfer, sell or license this Agreement or any of its rights or obligations under this Agreement to any third party without consent of the Artist(s) and under a separate agreement.


This Agreement shall be fully valid and enforceable by the Leader or Side Musicians by clicking the "Accept" button in the Site and providing all the information required by SmallsLIVE in the Site.


If SmallsLIVE cannot locate any Leader or Side Musician at any time, it shall put any amount due to such Leader or Side Musician in escrow until the time that SmallsLIVE can find such person or he or she provides accurate information to SmallsLIVE.

SmallsLIVE may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email, mobile text message, written or hard copy notice, or through conspicuous posting of such notice on Site, as determined by SmallsLIVE in its sole discretion. SmallsLIVE reserves the right to determine the form and means of providing notifications to you.

This Agreement will be governed by the laws of the State of New York applying to contracts made and to be performed in New York. The exclusive jurisdiction for any claim, action or dispute with SmallsLIVE or relating in any way to your use of the Site will be in the state and federal courts of the State of New York.

Should you have any questions concerning this Agreement or need technical support, you may contact SmallsLIVE at the following email


November 17, 2015

Week In Review

By Zak Kurtz

Russia Suspended From World Track

In an unparalleled move last Friday, the International Association of Athletics Federations (IAAF) suspended Russia from track and field in the wake of doping allegations against the country's athletes, coaches, trainers, doctors and officials. The IAAF, the world's global governing body, voted 22-1 via teleconference to provisionally suspend Russia. The ban will prohibit all Russian athletes from competing in sanctioned international track and field events. The ruling also stripped Russia of the right to host next year's World Race Walking Championships in Cheboksary and the World Junior Championship in Kazan.

The Walt Disney Company Is Focus of Special Chinese Counterfeit Crackdown

Last Thursday, a Chinese government agency vowed to enforce the law against counterfeit Disney trademarks. The State Administration for Industry and Commerce made a statement that pledged to commence a special one-year crackdown on infringement of Disney's registered trademarks.

The Chinese government has sporadically waged periodic campaigns against counterfeit goods, and the Walt Disney Company was the beneficiary of this year's new nationwide "special action" campaign. The government's decision to specifically focus on Disney-related products is an eye opener. Previously, the special crackdowns focused on broad industries or products, such as online sales of counterfeit goods.

Former Cornerback's Suit Challenges N.C.A.A. Transfer Rules

Devin Pugh, a former cornerback at Weber State, challenged the N.C.A.A. by filing a lawsuit claiming that the N.C.A.A.'s transfer rules and scholarship limits violate U.S. antitrust laws. According to current N.C.A.A rules, Division I basketball and football players must sit out a season of competition if they transfer universities, unless the N.C.A.A. gives them special waivers. Pugh's lawsuit, filed in federal court in Indianapolis last Thursday, essentially asks the N.C.A.A. to allow athletes to freely transfer between colleges. It also seeks to eliminate the limit on football scholarships (which is currently set at 85).

Pugh's complaint compared the rules mentioned above for Division 1 student athletes that transfer from and to universities with coaches that do the same; the latter of which are not forced by the N.C.A.A. to sit out a year without a waiver. Pugh's lawyer, Steve Berman, has several other similar cases pending against the N.C.A.A. Most notably, one case seeks to change the N.C.A.A.'s concussion protocols.

New York Attorney General Declares That DraftKings and FanDuel Conduct Illegal Gambling

Last week, New York State Attorney General Eric Schneiderman issued a major blow to the top two daily fantasy sports companies. He ordered DraftKings and FanDuel to stop accepting bets from New York residents, and claimed that the sites constituted illegal gambling under New York state law.

In Schneiderman's own words: "It is clear that DraftKings and FanDuel are the leaders of a massive, multibillion-dollar scheme intended to evade the law and fleece sports fans across the country. Today we have sent a clear message: not in New York, and not on my watch."

After issues concerning transparency, regulation and potential "insider trading" among the multi-billion dollar industry first emerged several weeks ago, Attorney General Schneiderman began investigating the top two companies. This (and the slew of advertisements a day) caused many states to focus on daily fantasy sports. Now, after a short investigation, Schneiderman's decision to issue cease-and-desist orders to the two companies provides another big blow to the budding young industry. Nevada recently declared that DraftKings and FanDuel must apply for licenses to do business in the state of Nevada, or be hit with unlicensed gambling charges.

According to legal experts, the decision by New York is guaranteed to spread to other states, as many legislators are questioning how and whether the legal gambling industry should operate and be regulated. In a statement, FanDuel said: "Fantasy sports is a game of skill and legal under New York state law. This is a politician telling hundreds of thousands of New Yorkers they are not allowed to play a game they love and share with friends, family, co-workers and players across the country." In response to the cease-and-desist letter, DraftKings said: "We strongly disagree with the reasoning in his opinion and will examine and vigorously pursue all legal options available."

If the companies decide to challenge the Attorney General's order in court, the state would have to prove that chance is a material factor in fantasy sports, thus making it gambling under New York state law.

To Resolve Lawsuit, United States Soccer Will Limit Headers For Youths

Last Monday, the United States Soccer Federation (USSF) introduced a number of safety initiatives into youth soccer, many of which focused on head injuries. The new guidelines will also bring to end a proposed class-action lawsuit against the USSF and others filed in 2014.

The new regulations will prohibit soccer players age 10 and younger from heading the ball. It also will reduce the amount of headers in practice for players age 11 to 13. The regulations are mandatory for U.S. Soccer youth national teams, academies, and Major League Soccer youth club teams; however, the rules are only guidelines for other soccer associations that are not under U.S. Soccer jurisdiction.

The legal case that caused the development of these new safety regulations started in August 2014. A group of parents and players filed a lawsuit in U.S. District Court in California against USSF, American Youth Soccer Organization, and Fédération Internationale de Football Association (FIFA), alleging negligence by the organizations in treating and monitoring head injuries. The lawsuit claimed no financial damages, and only requested a change in the rules. A decision by a judge this summer dismissed the case against FIFA for lack of standing, but stated that the plaintiff could amend the complaint and file against the USSF. This announcement by the USSF last Monday satisfied the plaintiff's demands, and the plaintiff's counsel, Steve Berman, stated there will be no appear of the earlier dismissal.

Jose Reyes Arrest May Test Major League Baseball's New Domestic Violence Policy

Colorado Rockies' shortstop Jose Reyes was arrested in Hawaii last week on charges of abusing a family or household member (his wife), according to the Maui County Police Department. This case presents Major League Baseball (MLB) with the opportunity to apply its brand new domestic violence policy against Reyes, and sets the precedent for MLB and other sports to follow.

Last Tuesday, MLB Commissioner Rob Manfred said that the league was conducting an internal investigation into the case. During the annual postseason meeting of baseball general managers, Manfred stated that: "This will be the first test, and I think it will withstand the test."

After the Ray Rice incident in the National Football League last year, the focus on domestic violence was palpable throughout all professional sports. That forced MLB, and the MLB players union, to negotiate and enact a new domestic violence policy for the league in August 2015. That policy gave the commissioner power to hand down discipline and suspensions and also allowed for counseling and psychological evaluations.

Other leagues acknowledge the existence and problem with domestic violence, however they still lack a clear and concise domestic violence policy, or any policy at all. Last season, the National Hockey League (NHL) suspended former Los Angeles Kings defenseman Slava Voynov for much of the season after he was involved in an alleged assault on his wife. The NHL did not have a domestic violence policy in place at the time of Voynov's suspension.

Discipline over domestic violence incidents involving MLB players has been lacking, as teams have been unclear on how to treat these situations. In 2006, Philadelphia Phillies pitcher Brett Myers was accused of assaulting his wife outside of a Boston bar. In that situation, MLB and the Phillies did nothing initially, and stated to the public that they were waiting for the legal case to first be resolved. Once the charges with dropped, at the request of Myer's wife, he was back on the mound pitching again shortly after. That was nine years ago, before the MLB had a domestic violence policy in place. Now that a policy is in place, it will be up to Manfred to set the tone, starting with Jose Reyes.

Ann Frank Gains Co-Author In Strategic Copyright Move

The Swiss foundation that holds the copyright to The Diary of Ann Frank recently alerted publishers of the book that Ann Frank's father, Otto Frank, is not just the editor of the book, but also the co-author. This reportedly contradicts Otto Frank's statement when he first published the book, declaring that the book mostly contained words written solely by Ann Frank, while she was hiding from the Nazis in a secret annex in Amsterdam.

The new revelation has very important practical implications, and essentially extends the copyright for the foundation for an additional 35 years. Copyrights in Europe end 70 years after the author's death. Ann Frank died 70 years ago in January at the Bergen-Belsen concentration camp, making her copyright expire this January. This new information allows the copyright to be extended until 2050, because Otto Frank died in 1980. The copyright in the United States will end in 2047, 95 years after the first publication of the book in 1952.

This new proclamation has an caused uproar for many. Agnès Tricoire, a lawyer in Paris who specializes in intellectual property rights in France, where critics have been the most raucous and are organizing a challenge, makes the obvious point that, "If you follow their arguments, it means that they have lied for years about the fact that it was only written by Anne Frank." Some opponents have declared that they would defy the foundation and publish portions of her text.

Another adversary of the decision is the Anne Frank House museum in Amsterdam. This museum is a separate entity that has been fighting the Swiss foundation for years now over intellectual property and ownership issues. Specifically, for the last five year,s the museum has been working with historians and researchers on a web version of the diary intended for publication once the copyright expires.

T-Mobile Video Plan Could Test Government's New Net Neutrality Rules

Last Tuesday, T-Mobile USA introduced a new video plan, allowing unlimited streaming from more than two dozen video producers, including Hulu and Netflix. This decision by T-Mobile might become the test case for the federal government's new rules to prevent favoritism on the Internet.

The Federal Communications Commission (FCC) passed the new "Net neutrality" rules earlier this year after much debate. The new rules are meant to prevent one content provider for getting preferential treatment over another. The rules are expected to face fierce opposition in the courts, but the T-Mobile plan may offer the first real look at how the FCC plans to enforce them.

The new FCC rules leave open the possibility for wireless carriers to offer services that do not count against their data limits, a practice known as "zero rating." The F.C.C. has said that this was done intentionally to encourage Internet service providers to experiment with new business models. T-Mobile's new plan does not qualify as "zero rating." Many believe that T-mobile's unlimited plan would set a dangerous precedent and distort the market. If that is the case, the FCC will certainly take a look at it and make an important decision.

November 12, 2015

Naruto v Slater Monkey Selfie Decision

By Barry Werbin

Here is a must-distribute 4-page brief (Naruto v. Slater dismissal brief.pdf) in support of dismissal filed by the defendant photographer Slater in the pending action brought by PETA in the N. D. Cal. on behalf of the monkey selfie "photographer." Slater originally set up the monkey to take a "selfie" and has since tried to no avail (and properly so) to enforce his claimed copyright in the resulting photo. Nevertheless, here PETA has alleged standing on behalf of the monkey, and Slater's short brief is magnificent, commencing with this opening paragraph:

"A monkey, an animal-rights organization and a primatologist walk into federal court to sue for infringement of the monkey's claimed copyright. What seems like the setup for a punchline is really happening. It should not be happening. Under Cetacean Community v. Bush, 386 F.3d 1169 (9th Cir. 2004), dismissal of this action is required for lack of standing and failure to state a claim upon which relief can be granted. Monkey see, monkey sue is not good law - at least not in the Ninth Circuit."

November 10, 2015

Week In Review

By Zak Kurtz

Pandora and Big Labels Settle Important Copyright Lawsuit for $90 Million

Internet radio service provider Pandora reached a $90 million settlement regarding royalties from older songs with several major record labels. This lawsuit and settlement mimic a similar settlement for $310 million in June that was made between the major labels and Sirius XM. Both disputes concerned the application of the U.S. Copyright Act to recordings made before 1972, as protection only applies to those recordings made after said date.

The specific settlement that was reached last week ends the lawsuit filed by Sony, Universal, Warner and Abkco Music & Records (an independent label that controls the rights to many Rolling Stones songs) against Pandora for allegedly not paying recording royalties from older songs. Pandora originally cited New York law as the defense.

The two settlements leave open the gray area regarding copyright recordings pre-1972, but put money in the pockets of many great artists. Pandora and Sirius XM still have other class-action lawsuits against them by other pre-1972 artists, including the Turtles, known famously for its song "Happy Together."

Judge Rules That Jay Z Accuser Has No Standing to Sue

After an eight-year legal battle, a federal judge ruled that Jay Z and his producer Timbaland will not have to proceed any further in a copyright lawsuit over samplings songs. The specific song involved was Jay Z's hit single "Big Pimpin'.

Judge Christina Snyder of the United States District Court in Los Angeles held that the plaintiff, Osama Ahmed Fahmy, did not have standing. The plaintiff's uncle, Baligh Hamdi, composed the original song "Khosara Khosara," a decade-old original Egyptian song that Jay Z sampled in his hit single.

Jay Z had paid EMI, the company that controlled the licensing for "Khosara Khosara", $100,000 for using a small sample of the flute from Hamdi's original track. However, in 2007, Fahmy brought suit against Warner Music, Paramount Pictures, EMI, and other entertainment companies, claiming that his uncle's song was used without proper permission. Fahmy's lawyers argued that by altering Hamdi's original song, Jay Z "mutilated" Hamdi's moral rights without his or his heirs' permission (Hamdi died in 1993).

The decision threw out Hamdi's claims, and the judge stated both that Hamdi signed away his economic rights to the song, and that the issue regarding moral rights would have to be handled in Egypt. The lawyer for the Hamdis stated that he intends to appeal the decision.

FIFA Confirms Investigation Into Numerous Top Executives

On Tuesday, FIFA's Executive Committee granted new rights to its Ethics Committee in order to conduct a proper investigation, and the Ethics Committee began using those new rights by confirming that it was actively investigating nearly a dozen current and former officials. Many of the names on the list are familiar ones.

FIFA president Sepp Blatter and European head Michael Platini have already been provisionally barred as the Ethics Committee looks into the alleged incident regarding $2 million in "disloyal payments" by Blatter to Platini. The Committee said that it would "do everything in its power" to settle the cases of Blatter and Platini within the 90-day window of their provisional bans. Additionally, Platini said he will run in the election for Blatter's successor next February, however he cannot be officially approved as a candidate while he provisionally suspended.

Other than Blatter and Platini, the Ethics Committee confirmed that it was also investigating Franz Beckenbaeur of Germany; Ángel María Villar of Spain; the FIFA senior vice president who is temporarily running UEFA, Europe's governing body, Jeffrey Webb; the former CONCACAF president, Eugenio Figueredo; Nicolas Leoz; and former Brazilian soccer chief Ricardo Teixeira. Others include Amos Adamu, a Nigerian who served a three-year ban from world soccer for soliciting a bribe in exchange for his vote in the bidding for the 2018 and 2022 World Cups; and Worawi Makudi, a Thai soccer official and former executive committee member.

National Basketball Association Cheerleaders Join Wage Lawsuits

Last year, cheerleaders for several National Football League (NFL) teams claimed that they were being underpaid by the billion dollar teams they represent for the many hours of hard work they put into their jobs. The string of lawsuits against NFL teams forced million dollar settlements and even caught the eye of politicians. Now, similar allegations and claims have emerged in the National Basketball Association (NBA).

Last month, former Milwaukee Bucks dancer Lauren Herington brought suit in federal court in Wisconsin, claiming that she was paid less than minimum wage during the 2013-2014 NBA season. As with the suits brought forth in the NFL, Herington claimed that the flat fees she received for games, practices, and special appearances turned out to be under the minimum wage of $7.25 defined by Wisconsin and federal law. Herington also claimed that she earned an average hourly wage of $5, from being paid $65 for games, $30 for practices, and $50 for special appearances.

Herington's lawsuit in Wisconsin is the first of its kind in the NBA, and carries strong implications for future lawsuits by other individuals and teams. Last season, a similar lawsuit by an individual against the Oakland Raiders ignited a rash of class-action and individual lawsuits against many other NFL teams, like the Buffalo Bills, New York Jets, Tampa Bay Buccaneers, and the Cincinnati Bengals. All but the suit against the Bills settled. In a proposed settlement last week between the Bengals and a qualifying class of cheerleaders, the team offered to pay $255,000, or $2,500 per cheerleader for every season from 2011-2013.

According to Sharon Vinick, an employment lawyer in California who handled the precedential Oakland Raiders case, the difference between minimum wage and what the plaintiffs were paid is not large. Thus, many if not all of these cases should settle favorably for the plaintiffs. According to Sharon Vinick: "These are multimillion-dollar organizations that are choosing not to follow the law when it comes to compensating these women." The teams, like the Bills, are insulated behind the claim that the cheerleaders are independent contracts and not employees. Needless to say, these cases have even caught the attention of state lawmakers, who are pushing for laws for cheerleaders and change.

17 People in Three States Held in Online Gambling Ring

On October 28th, Queens's District Attorney Richard Brown charged 17 individuals with corruption, money laundering, and promoting gambling and conspiracy in a 126-count indictment. The suspects were from all over the United States, ranging from California to New York. The illegal gambling ring used an offshore Internet website, where over 2,000 United States users placed bets and move millions of dollars.

Fourteen of the defendants have been arrested, and three are still being sought by the Queens District Attorney's office.

Music Executive Sues Over Compton Movie

On Friday, music executive and ex-N.W.A. manager, Gerald E. Heller, filed a lawsuit in Los Angles County Superior Court against NBC Universal and over 13 other defendants stemming from the film "Straight Outta Compton." Mr. Heller, who was played by Paul Giamatti in the film, claims that the film defames him in its depiction of him as a manager for Ruthless Records. The lawsuit also claims that the movie violated his non-disparagement agreement with one of the film's producers, and an oral contract from earlier drafts of the movie.

Heller's complaint asks for $35 million in actual damages and $75 million in punitive damages. To date, the film has earned over $200 million worldwide. Suge Night, who was also portrayed in the film without payment, has made similar claims, but has not yet filed suit.

Pierre Garcon Leads Charge for NFL Players Against FanDuel

Washington Redskins wide receiver Pierre Garcon has filed a federal lawsuit in Maryland against daily fantasy sports operator FanDuel. FanDuel was named as a defendant in over 20 lawsuits in the month of October alone. However, Garcon's lawsuit is the first against it by a professional athlete.

Based on the complaint, it appears that Garcon is the named plaintiff and has the intention of having other NFL players join him to seek class certification. The complaint alleges that FanDuel "knowingly and improperly exploits the popularity and accomplishments" of Garcon, and uses his picture in association with his name throughout the FanDuel site without his consent.

Essentially, this is a right of publicity claim brought by Garcon in Maryland federal court, where Maryland does not have a publicity rights statute, thus making Garcon's claim analyzed under the common law. This makes the case an uphill battle for Garcon and his legal team. However, it could extend the barrage of lawsuits against FanDuel, and open up potential cases in states with more favorable publicity rights statutes, like California.

Two Illegal Movie Sharing Sites Closed Down By Courts

The end of October saw the closing of two very popular movie sharing websites by courts in Canada and New Zealand. According to the Motion Picture Association of America (MPAA), the site referred to as Popcorn Time or, along with the BitTorrent site, whose films were reached through the Popcorn Time site, were both closed under injunctions in October.

The MPAA claimed that figures from Commodore, a media measurement company, showed that Popcorn Time had 1.5 million unique visitors in July 2015. The YTS site had 3.4 million visitors in August. Commodore claims that YTS has a library of about 4,500 film titles in violation of copyright laws.

The Popcorn Time site was closed in 2014, until the site replaced it. This type of game has been a persistent occurrence, and has perturbed courts and film companies around the world. As soon as one site is shut down, another similar one pops right back up.

November 9, 2015

Second Circuit Court Holds That Director Does Not Own Separate Copyright for His Contribution

By Robert L. Seigel

Over the years, there has been a metaphorical dance in which a media project's attorney often has to chase down cast or crew members to sign agreements that include the customary "work for hire" language. Some cast and crew members (and their respective representatives) have been less than helpful in this manner. Sometimes it is forgetfulness; however, sometimes these personnel and their representatives believe that if they do not sign their agreements, there will be a resulting problem with the "chain of title" for the production company. They often think that by not signing, they may hinder or prevent the production company from signing a sales or distribution agreement and completing delivery of the required elements of a media project to the sales company, distributor or licensee.

Then the case of 16 Casa Duse v. Merkin, No. 13-3865 (2d Cir. 2015) arrived on the legal landscape.

Robert Krakovski, the principal of the film production company 16 Casa Duse, LLC (Casa Duse), purchased the rights to a screenplay titled "Heads Up" from a third party, and asked Alex Merkin to direct the film. As part of standard operating procedure, Krakovski then hired a cast and crew for the film, and each cast and crew member (other than Merkin) signed an Independent Contractor Agreement with Casa Duse, which was a work-for-hire agreement providing that Casa Duse would own all rights in the film.

Everyone signed the agreement except for Merkin, despite Krakovski's repeated attempts requesting Merkin to sign the agreement. Despite Krakovski not receiving a signed agreement from Merkin, the film's production commenced and principal photography as well as post production occurred.

Compounding matters, Krakovski gave Merkin a hard drive that included the film's raw footage, so that Merkin could prepare an initial, or "rough cut" of the film. Although Merkin would not sign his director's agreement, he did sign a media agreement, which permitted him to edit the raw footage, but he could license, sell or copy the footage without the production company's permission.

However, a problem arose when Krakovski began submitting the film to film festivals, and scheduled a screening at the New York Film Academy (NYFA) with a reception to follow the screening. Krakovski placed a deposit of $1,956.58 for the reception. On the date of the screening, the NYFA canceled the screening because Merkin's attorney, Maurice Reichman, had sent it a cease-and-desist notice. This cancellation resulted in Krakovski losing his restaurant deposit.

To refute Merkin's claims that the production company was liable to Merkin for copyright infringement and that Merkin had a copyright interest in the film, the production company brought a declaratory action to address such issues, not only against Merkin, but also his attorney.

The district court granted a temporary restraining order and preliminary injunction enjoining Merkin from interfering with Casa Duse's use of the film. Casa Duse also moved for summary judgment on its claims and its requests for fees and sanctions. Merkin cross-moved for summary judgment, requesting that the district court vacate the preliminary injunction and dismiss the production company's request for fees and sanctions.

The district court declined to vacate the injunction and granted summary judgment to the production company on all claims, along with fees against Merkin and sanctions against Reichman. It also dismissed all of Merkin's counterclaims, except for his claim for breach of contract, which Merkin agreed to voluntarily dismiss without prejudice. The district court entered final judgment, awarding Casa Duse (1) $1,956.58 in damages resulting from Merkin's interference with the NYFA screening event; and (2) $185,579.65 in attorneys' fees and costs, of which Merkin and Reichman would be jointly and severally liable for $175,634 and Reichman would be solely liable for the remaining $9,945.65. Merkin and Reichman appealed to the Second Circuit.

The Second Circuit noted that the case presented a question of first impression in the Circuit: Can a contributor to a creative work whose contributions are inseparable from and integrated into the work maintain a copyright interest in his or her contributions alone? The question was answered in the negative.

The Court first addressed the competing copyright claims. Merkin argued that the district court erred in concluding that he could not copyright his creative contributions to the film, and that he lacked a copyright ownership interest in the "raw film footage." The production company countered that the individual contributions to a film, such as direction, are not themselves subject to copyright protection, and that the production company retained sole copyright ownership of the final film and the film's raw footage. The parties agreed that Merkin was not a "joint author" or "co-author" of the film under the Copyright Act, and that Merkin's efforts could not be deemed a "work made for hire," which would have precluded Merkin's copyright infringement claims.

The Second Circuit concluded that copyright protection does not subsist in creative contributions to a work that are inseparable from the work itself. The Copyright Act's definitional terms and legislative history supported the conclusion that Merkin's contributions to the film did not themselves constitute a "work of authorship" sufficient on its own to be provided copyright protection. Although the Copyright Act does not define "works of authorship," it does list examples of categories of "works of authorship," which do not include integral, non "stand alone" constituent parts of a work. The Second Circuit also relied upon the Ninth Circuit's decision in Garcia v. Google, Inc., which held that an actor did not own a copyright interest in her performance in a completed film, because such a theory of copyright law would result in a "legal morass" making "Swiss cheese of copyrights." According to the Second Circuit, filmmaking is a collaborative process that typically involves artistic contributions from large numbers of people, including producers, directors, screenwriters, actors, designers and cinematographers. Although these various contributors can contribute original artistic expressions that are arguably fixed in the medium of film footage, this alone is not sufficient. Authors are not entitled to copyright protection except for the "works of authorship" they create and fix, which does not include non-freestanding contributions to an integrated work.

The Second Circuit next considered the parties' competing copyright claims with respect to the raw film footage. It agreed with the district court that the production company was the "dominant author" of the film, based on the production company's decision-making authority over production of the film, its purchase of the underlying screenplay, and its work-for-hire agreements with the cast and crew. The record did not reflect any developments that occurred between the creation of the raw film footage and the production company's attempts to create a finished product that would alter the analysis as to the raw footage. Therefore, the production company, not Merkin, owned the copyright to the finished film and its prior versions.

Addressing the production company's claim for tortious interference with business relations under New York law, the Second Circuit disagreed with the district court, concluding that the undisputed material facts required judgment in Merkin's favor. To support its claim, the production company was required to show that Merkin's conduct rose to the level of a crime or a tort, or that Merkin engaged in the conduct solely for the purpose of inflicting intentional harm. The Court maintained that the production company failed to show that Merkin acted for a wrongful purpose, or used dishonest, unfair or improper means. It also rejected as insufficient the production company's argument that Merkin acted with a willful blindness to the factual and legal realities of his position. Finally, the Second Circuit held that the district court did not err in awarding fees and costs to the production company and imposing sanctions against Reichman.

On a practical level, does this decision mean that producers should not secure "work for hire" or assignment of rights agreements? Obviously not. The Second Circuit's decision leaves certain issues unaddressed, such as whether such contributions and a screenplay or a music score could be deemed an independent contribution. The licensees and purchasers of audio-visual media works, such as a motion picture feature, will still require such documentation for chain of title purposes to enter into such agreements, as well as secure Errors and Omissions (E & O) insurance. This decision, however (hopefully extended in such circuits as the Ninth), shall permit production counsel to take a collective breath when those that work on a media project (or their representatives) attempt to engage in what be called unfair and "strong-arm" tactics in negotiations.

October 31, 2015

Stop and Busk: The Rights of Subway Performers

By Justin Zim

Many consider New York City to be the mecca of art, music, fashion and culture. The city streets are home to some of the most talented musicians and artists, some of whom one might not even recognize while hustling to their next destination. This is because many of them are "buskers," musicians and artists who perform on the street, in the subway, or in parks. Recently, however, these performers have been hassled, ejected, and even arrested by police officers, primarily from the subway, for allegedly violating the law.

According to the Metropolitan Transit Authority's (MTA) Transit Rule 1050.6(c), "artistic performances, including the acceptance of donations" are explicitly permitted in the subways of New York so long as the performances do not "impede transit activities." ( For many New York buskers, this rule has allowed them to freely entertain the hordes of city-goers day in and day out.

Most buskers know about this rule. As recently as October 18, 2014, singer/songwriter Andrew Kalleen was hassled by a New York Police Department officer. In a video posted to YouTube, one can clearly see and hear the musician citing MTA Transit Rule 1050.6(c) to the officer. Yet, the officer insisted that Kalleen could not play his instrument in the subway and, after other officers arrived, Kalleen was forcefully taken into custody. (Cady Drell, Why Was This Subway Musician Arrested for Playing Guitar?, (November 20, 2014),

According to Rolling Stone, Kalleen was taken to the police precinct and held for several hours. Allegedly, Kalleen was ejected from the subway for performing and collecting donations "without permit of permission." He was then charged and arrested for loitering. This was justified under section 240.25 of the New York Penal Law (NYPL). Section 240.35 contradicts Transit Rule 1050.6(c) by making street performances in the subway the crime of loitering. Specifically, NYPL § 240.35 makes it a crime to: "[remain] in any transportation facility, unless specifically authorized to do so, for the purpose of soliciting or engaging in any business..., or for the purpose of entertaining persons by singing, dancing or playing any musical instrument."

Those involved in this back and forth between the two laws disagree sharply on what is and what is not legal in terms of subway performances. This disagreement has led, and continues to lead, to a number of wrongful arrest lawsuits. (Drell, While most of us who ride the New York City subways understand that panhandling is a very real and frustrating occurrence, we also take note of the many talented musicians who take a seat next to the wall and sing their hearts out for quite possibly no reason other than to entertain.

October 29, 2015

The Unionization of College Sports?

By Michael DeBenedetto

In recent years, the debate surrounding student-athlete compensation has become a fixture in college sports. The most recent development in this discussion has been the attempted unionization of the Northwestern University football team. In August, the National Labor Relations Board (NLRB) refused to recognize the proposed unionization by choosing not to exercise its jurisdiction there. ( In reaching its decision, the NLRB noted that much of the nation's schools, especially in the Big 10, are state operated. For this reason, exercising its jurisdiction over a private institution, to decide its labor status, would be unfair to the rest of the conference. ( This ruling overturned the NLRB Regional Director's decision finding that Northwestern University players met the criteria of a union and could be considered employees based on (1) the expanded development of television contracts and (2) the day-to-day influence of coaches over each player's activities. (

This ruling shed light on the labels of "student" and "employee." There is a strong argument that the athletes are students before anything else. They are not working for a business like a professional athlete, but rather studying at an institution of higher learning. To quote Clemson's head football coach Dabo Swinney: "To say these guys get nothing totally devalues an education. It just blows my mind people don't even want to quantify an education." ( The compensation they receive for participation in an athletic program offered by the school is a free education; this includes tuition, books, and meals. ( The school, on its own merits and principles, along with its respective conference, negotiates with various outlets to gain its students and school exposure on the national stage. Compensation is then awarded to the school, which, in turn, uses it to fund its institution and the various programs it sponsors, including football scholarships.

If a student-athlete is found to be an "employee," the school, through collective bargaining, would have to obey minimum wage laws and deal with larger issues such as work week hours, overtime, and worker's compensation should injuries occur. These facets, among others, would likely undermine the players' role as student-athletes and challenge the amateur label under which they function.
( Furthermore, other sports may be impacted and programs that do not generate the same level of profit may be forced to be cut because of the larger allocation provided to the more popular programs. (

With this ruling regarding Northwestern University, a private institution, the focus now shifts to public universities and their programs. As recognized in the decision, public universities answer to their states' rules on unionization rather than to the NLRB, which concerns itself with private employers. Thus, there is potential for further litigation concerning the state arena. However such litigation would create unrest. This is because some states bar unionization of college athletes through their "right to work standards" and will not recognize college-athletes as employees, while other states may be more friendly to unionizing. This could create problems within a conference should some schools prohibit unionization, while others do not. (

Overall, the most recent major battle in the college-athlete struggle to unionize has gone in favor of the universities. The NLRB's refusal to grant jurisdiction over Northwestern University's claim will have repercussions in the struggle to define the status of college-athletes. While the issue is far from resolved, the current climate seemingly favors the universities. This, arguably, could be for the betterment of college sports.

Upcoming Center for Art Law Events

1. Art Law Mixer (NYC) -- Nov. 5, 2015 -- Doyle Auction House

Guest speaker to address the NY Arts and Cultural Affairs law governing sales of multiples.
Guest Speaker:
Judith Wallace is a member of the Art Law Group at Carter Ledyard & Milburn LLP. She represents collectors, foundations, artists and scholars in matters of art ownership, authenticity, authorship, consignment and sales, foundation governance and other art-related matters. She writes frequently on art law issues. As the author of the recently published "Safety in Numbers: Dealer Caveats and Purchaser Protections for Prints, Editioned Sculpture and other Art in Multiples"(August 5, 2015), Ms. Wallace will discuss New York Arts and Cultural Affairs Law governing art merchants who sell non-unique works of art -- engravings, posters, photographs, sculptures, and provide certificates of authenticity to these objects.

Registration details:

2. Art, Law and Crises of Connoisseurship (London) - Dec. 1, 2015 -- The Society of Antiquaries of London, Burlington House, Piccadilly (London, UK)
Registration Details:

October 28, 2015

Three Common Mistakes with Employee Handbooks

By Kristine Sova

Though there are many laws requiring employers to notify employees of certain workplace rights, there are actually no federal, New York State or New York City laws specifically requiring an employer to have an employee handbook. However, there are a number of reasons as to why creating and maintaining an employee handbook is a good idea and a best practice.

One good reason for a handbook is that a well-prepared one will answer many routine questions for employees. This saves management and HR time if employees know to look to the employee handbook for answers first.

Another good reason, particularly for young businesses without much HR experience, is that a well-prepared handbook will contain procedures that will provide a (hopefully legally-compliant) roadmap for how to address certain personnel issues (for example, a sexual harassment complaint, a request for reasonable accommodation, and so forth). Furthermore, a legally compliant and up-to-date employee handbook may provide legal protection if an employer's policies, practices or personnel decisions are ever challenged in court.

This all sounds great, right? Unfortunately, the flip side is that a poorly-worded, inconsistently implemented, and non-compliant handbook can actually create and invite employment litigation and may do more damage than good for an employer facing a lawsuit. With that in mind, be aware of three common mistakes businesses make when drafting their own employee handbooks:

-Using a "one-size-fits-all" template. Not all businesses are alike. Simply copying the contents of another company's employee handbook (or purchasing a low-cost, generic version online) is unlikely to satisfy your company's HR needs. Employee handbooks should be carefully and uniquely drafted to reflect the policies and procedures used by a particular business. In addition, "one-size-fits-all" handbooks generally do not factor in the size or locale of your business, making them much more likely to contain unlawful policies and procedures.

-Not following the policies in the handbook. A well-crafted employee handbook is well worded, an accurate reflection of the company's (lawful) policies and procedures, and consistently implemented by HR and management. If a company does not follow the policies and procedures it has laid out, the company can lose its ability to enforce them at a later date.

-Not engaging an employment attorney to review the handbook. An attorney well-versed in employment law is an invaluable resource for assessing the lawfulness of the policies and procedures stated in the handbook. Each year, the employment laws change, or new employment laws come into existence, and it's important to know that your document is legally compliant and up to date.