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March 2, 2015

Getting Gambling Wrong: Broadway's Golden Age Lyricists Roll Snake Eyes

By Bennett Liebman
Government Lawyer in Residence, Albany Law School

In the pantheon of Broadway lyricists, names don't come higher than Steven Sondheim and the team of Betty Comden and Adolph Green. Yet when it came to describing the world of gambling in their shows in the 1950's, these writers threw snake eyes.

Sondheim was the lyricist for the iconic musical "Gypsy", which had its premiere in 1959. "Gypsy" retells the story of the famed burlesque performer Gypsy Rose Lee. The focus of the story is on Gypsy's mother Rose - played initially by Ethel Merman. Mama Rose, simply put, is a monstrosity of a stage mother.

In her first number, Rose's personality is revealed through the song, "Some People." The song starts off with Rose's assertion that: "Anyone that stays home is dead." Roses goes on to add, "Some people can be content playing bingo and paying rent..."
Yet playing bingo was not a possibility for anyone at the time. Based on Lee's life, the time of the song would likely have occurred before 1920, before Gypsy Rose Lee's ninth birthday. Even if you can place the song in the early 1920's (The Internet Broadway Database suggests that Gypsy starts in the 1920's. See http://ibdb.com/production.php?id=2743), this cannot make the bingo lyric work.

While it may seem that bingo has been around forever, its commercial start in the United States has an actual time and date. Toy salesman Edmund Lowe in December of 1929 visited a carnival in Georgia, where he saw patrons getting excited over a game called "beano." People played a lottery-style game where they covered a card with beans. Lowe talked to the person who ran the game and took it back to New York to share with his friends. (See generally Robert Daley, "Bingo Binge Is Big Business," New York Times, December 8, 1957 and Art Harris, "The Bingo Baron," Washington Post, February 26, 1986) He instructed people with the winning card to shout out, "Beano!" Allegedly, the name of the game came about when a friend of Lowe's with a winning hand got so excited, that he or she yelled out "Bingo" instead of "Beano." (Richard C. Firstman, "Original Bingo Promoter Dead at 75," Newsday, February 25, 1986. See also "The Biography of Bingo," New York Herald Tribune, March 16, 1962)

Lowe developed additional cards and "hired a Columbia University, math professor, named Carl Leffler, to help him increase the amount of number combinations in Bingo cards. By 1930, Leffler had invented 6,000 different bingo cards." (Jan Evans, "A Brief History of Indian Gaming," Oklahoma Indian Times, February 29, 2000) Lowe soon began marketing the game, and after he began licensing the game to churches in the early 1930's, the game took off in popularity. Therefore, bingo is a game which popularity dates to 1930.

Nobody in 1920 could have been content playing bingo, because there simply was no such game known as bingo in 1920. While given her threatening personality, many people might have been reluctant to call her on it, Mama Rose got bingo wrong.

"Bells Are Ringing"

"Bells Are Ringing" was another popular Golden Age musical from 1956. The lyrics and the book were again written by Comden and Green. Julie Styne, who also wrote the music for "Gypsy", wrote the songs. In the show, Ella Peterson is an extremely well -meaning, pleasant, but also meddlesome, employee of a phone answering service who gets involved with helping to better the lives of the service's clients.

One of the clients of the answering service is Sandor, who is, "in fact, a bookmaker... he is able to do this by the ingenious means of providing his clients with musical codes - for example, Beethoven is the pseudonym for Belmont Park Race Course, Puccini is the code for Pimlico Race Course, Tchaikovsky means Churchill Downs, etc. Therefore, when the message is received, 'Order 500, 6th Symphony, Beethoven, Opus 3,' it actually means ' Bet 500 dollars, sixth horse, Belmont, 3rd Race.'"

To explain how the bookmaking service works, Sandor sings the number, "It's a Simple Little System," to his employees. He lists the composers and tells his employees the names of the tracks they stand for. Thus, "Berlioz is Bainbridge, Hindemith is Hawthorne, Offenbach is Omaha." (As the song goes: "The composers' names, we list them with the racetracks of the land." The design of the scheme is accomplished by: "We will take those record orders in a very cultured tone. While we're really booking horses over at Susanswerphone." See http://lyricsplayground.com/alpha/songs/i/itsasimplelittlesystem.shtml).

Business for poor Hector Berlioz had to be extremely slow. Bainbridge Park was once a thoroughbred racetrack in northeastern Ohio in Geauga County southeast of Cleveland. The track got its start on July 8, 1928 and ran for a grand total of eight seasons, closing in 1935. By that year, Bainbridge Park had only 15 days of racing distributing purses of $3,113 per race day.(American Racing Manual, 1936) Even for a racetrack in the Depression, this was an incredibly low amount of money. It could hardly be surprising that the track would not be in operation after 1935.

Nobody was betting on Bainbridge in 1956. They weren't even betting on Bainbridge by 1936.

Offenbach probably wasn't getting much play either at the answering service. The racetrack in Omaha was traditionally (See generally http://www.ak-sar-ben.com/), and certainly by 1956 (American Racing Manual, 1957), known universally as Ak-Sar-Ben, which is Nebraska spelled backwards. In its earlier days, the track was occasionally known by a few as Omaha, but even then most everybody called in Ak-Sar-Ben. At the time that "Bells Are Ringing" purports to take place, in 1956, almost nobody would have called it Omaha.

The naming of the tracks is extremely puzzling in "Bells Are Ringing". By all accounts, Julie Styne was a race track regular. Styne, unlike Sandor, actually knew the all the racetracks of the land (albeit it's difficult to believe that most anyone remembered Bainbridge). Why not call Berlioz, Bowie, a track in Maryland that was certainly popular in 1956? Similarly, why couldn't Offenbach be Oaklawn Park in Arkansas?

Spoiler alert. Given the fact that Sandor was arranging for people to wager on defunct racetracks, it should not be a surprise that he eventually gets busted by the police.

It may be hard to dislike Golden Age musical comedy, but couldn't someone have sprung for a gambling dramaturge?

March 3, 2015

Center for Art Law's Art Law Mixer

The first art law mixer of the year will take place at the distinguished Loretta Howard Gallery, which specializes in Post-War American Abstraction. Attendees will be able to view the exhibition of Richard Anuszkiewicz entitled "Temple Paintings," and meet the curators.

Our guest speaker this evening is Roger Shepherd, Creative Director at panOpticon. Shepherd has worked with a number of museums, galleries, foundations and estates to create digital catalogues raisonnés, including the critically acclaimed The Paintings of Paul Cezanne online. Shepherd will describe how the digital design process has taken research from mere recording to a kind of forensic activity. According to Shepherd, "Digital cataloging has literally changed the equation to the extent that the combination of structured data-visualization and dynamic user-participation has had a profound effect on public discussion and debate. In a word, the way we have designed our management system has democratized the catalogue raisonné."

Unless there is a snow storm, there is no good excuse to miss this mixer.

March 12th @ the Loretta Howard Gallery
6:00 PM - 8:00 PM

Admission: $20

To register: https://www.eventbrite.com/e/art-law-mixer-loretta-howard-gallery-tickets-15750893346

March 5, 2015

Cardozo Sports Law Symposium

This year the Cardozo Sports Law Symposium will take place on Friday, March 13th.

For more information and to purchase tickets, visit: http://www.eventbrite.com/e/3rd-annual-cardozo-sports-law-symposium-tickets-15823837524

EASL is a sponsor of the event, and all EASL members will receive a discounted rate at $45 for 6 CLE credits.

March 6, 2015

Week in Review

By Chris Helsel

Robin Thicke/Marvin Gaye Copyright Infringement Case Goes to Trial

A highly unusual - yet no doubt entertaining - scene played out in a California federal courtroom last week. Robin Thicke, whose hit song "Blurred Lines" dominated pop radio in the summer of 2013, took to the keyboard and performed the song in open court, along with a medley including bits of songs by U2, the Beatles and Michael Jackson. His intention was to demonstrate how easily one song can be made to sound like others.

This demonstration was the result of an ongoing legal dispute between Mr. Thicke and two children of the late Motown singer-songwriter Marvin Gaye. In 2013, following private infringement claims made by the Gaye children, Mr. Thicke and his co-writers, Pharrell Williams and the rapper Clifford Harris, Jr. (better known by his stage name, T.I.), filed a preemptive suit seeking judgment in their favor. Nona and Frankie Gaye quickly countersued.

Mr. Williams, who was the song's principal writer, testified this week that "Blurred Lines" was intended as an homage to the type of music made by Mr. Gaye. While he confessed that it was possible he was "channeling" the music of Mr. Gaye, he insisted that he had no intention to copy his work. However, Mr. Gaye's children believe that the song uses distinct musical elements of their father's 1977 hit "Got to Give it Up" without permission, which amounts to copyright infringement.

Notably, Mr. Thicke told VH-1 in 2013 that he has often been called "the white Marvin Gaye" and that "Got to Give it Up" was one of his favorite songs.

Aside from demonstrating his prowess on the keyboard, Mr. Thicke's courtroom testimony also included the embarrassing revelation that despite receiving a writing credit, he played no part in writing the song. "The biggest hit of my career was written by somebody else, and I was jealous and wanted credit. I felt it was a little white lie that didn't hurt [Mr. Williams'] career but boosted mine," he said.

These issues arise with surprisingly frequency in the music business, though it is rare that a copyright infringement case reaches trial. Most often, as with the recent Sam Smith/Tom Petty dispute recounted in an earlier "Week in Review" post, the two sides reach a private out-of-court settlement to avoid embarrassment and further expenses.

Here, however, the "Blurred Lines" writing team appears ready to fight it out to the end. Should they lose, the damages could be massive. The song sold 7.3 million copies in the United States alone, and the plaintiffs' attorneys have claimed that the song earned at least $30 million in profit. Mr. Thicke's attorneys have disputed this figure.

Ultimately, the case will come down to a jury's determination of whether "Blurred Lines" crossed the line from an homage to an outright copyright infringement. Said MTV News personality Sway Calloway about the case, "Even if they didn't sample Gaye directly, it's so similar that you could have predicted that this would happen. The irony is that it's supposed to be an homage. But you still have to follow the rules. If you're going to take from someone else's creation, then you may have to pay the piper."


Major League Soccer Reaches New Collective Bargaining Agreement, Avoids Anticipated Strike

America's premier professional soccer league, Major League Soccer (MLS, league), and its players' union, MLS Player's Union (MLSPU), have reached an eleventh-hour resolution to their ongoing labor dispute, preventing the first work stoppage in league history.

The two sides agreed on Wednesday to a five-year collective bargaining agreement (CBA) that grants MLS players free agency for the first time. Under the new agreement, which was reached two days prior to the scheduled start of the league's 20th season, players age 28 or older with at least eight years of MLS experience can become free agents following the expiration of their playing contracts.

Previously, the league (which operates as a single entity and contracts directly with the players) retained control over a player following the expiration of his deal. This system bound a player to his club even after the expiration of his contract. Additionally, under the previous system, a player who left MLS to play for a foreign club would be re-assigned to his former MLS club if he chose to return to play in the United States. Astute readers will note the similarity between the old MLS system and the historical "reserve clause" employed by Major League Baseball clubs until its demise in 1975.

Further, under the old system, under certain circumstances a player with an expired contract could be "re-drafted" by another MLS team, with the player receiving no pay raise and no choice as to the team to which he would be assigned.

The new CBA also raises the league's minimum salary from $36,500 to $60,000, which represents a major victory for the players. League-side negotiators were able to salvage a victory of their own, however, by instituting a cap on free agent player salary raises. Under the new deal, salary increases are capped at between 115% and 125%, depending on the player's current salary.

The announcement of this new agreement came as a surprise to many observers, as it appeared in recent days that the two sides were far apart in negotiations. In fact, following the league's last best offer on Tuesday night, the player representatives voted 18 to one in favor of a strike. The league was informed of this vote on Wednesday morning, and the new agreement was reached by the end of the day.


Photojournalism Prize Revoked Amid Misrepresentation Allegations

The Amsterdam-based photojournalism organization World Press Photo has stripped a photographer's first place prize after learning that he misrepresented the location of at least one of his images.

The artist, Giovanni Troilo, had won the award for his 10-photo series entitled "The Dark Heart of Europe," which purportedly featured photographs captured exclusively in Charleroi, Belgium. However, an investigation revealed that one photo included in the series, which shows the Belgian artist Vadim Vosters stretched out naked on a table recreating a painting, was taken in Mr. Vosters' studio in Brussels - not in Charleroi.

Mr. Troilo, who is based in Rome, described the revocation of his prize as "a big injustice," though he admitted that "I made a mistake, I can't deny that." He insists that the misrepresentation was a technical error, not an intentional misrepresentation.

The picture of Mr. Vosters was not the only photograph included in Mr. Troilo's photo series that garnered controversy. Another image, which captured an intimate encounter between a man and woman in a parked car at night, is alleged to have been improperly staged. The man in the car, it turns out, was Mr. Troilo's cousin, and had agreed to be photographed. Additionally, the car's back seat was illuminated by a remote control flash, which had been placed in the car beforehand.

"Having a photographer involved with the subject toward a finished image has a place in photography; it's in portraiture," said Greg Marinovich, a Pulitzer Prize-winning photographer from South Africa. "If they stand by what they say, that you cannot stage events in photojournalism, then this set of pictures should be disqualified."

The World Press Photo decision to strip Mr. Vosters of his award came one day after Visa Pour L'Image, a leading photojournalism festival in France, announced that due to allegations of photographs being staged it would not showcase any images that had won World Press Photo awards this year.

Ultimately, World Press Photo determined that a line must be drawn between documentary photography and art photography. According to Michele McNally, who in addition to her role as director of photography and assistant managing editor at The New York Times serves as the leader of the World Press Photo jury, "A staged photograph is not acceptable in news pictures that are used to depict real situations and events. Portraiture and fashion and still lifes are of course produced and directed."


Rockers Hall and Oates Sue Food Company Over "Haulin' Oats" Granola Brand

Daryl Hall and John Oates, known collectively as the Rock and Roll Hall of Fame duo Hall & Oates, have filed suit against Early Bird Foods for selling granola under the brand "Haulin' Oats." The suit, filed in the Eastern District of New York, alleges that Early Bird has violated the plaintiffs' trademark on food-related puns associated with their names.

Mr. Hall and Mr. Oates registered the mark "Haulin' Oats" in connection to the sale of oatmeal and food delivery in 2012. The group previously licensed use of the trademark to a separate Tennessee-based company called "Haulin' Oats" last year.

According to the suit, the duo did not enter into any such agreement with Early Bird, and therefore the company's use of the "Haulin' Oats" mark constitutes trademark infringement. The suit seeks an injunction and unspecified damages.


New York Youth Symphony Cancels Performance That Quotes Nazi Anthem

The New York Youth Symphony has canceled an upcoming performance because the scheduled piece includes a musical quotation from the Nazi anthem, Horst-Wessel-Lied ("Horst Wessel Song"). The piece, entitled "Marsh u Nebuttya" ("March to Oblivion" in Ukrainian) was composed by a local college student and had been selected after winning a young composers' competition.

Following the symphony orchestra's performance at the piece's premiere last month, the Youth Symphony received a letter of complaint from an audience member who identified him or herself only as "a Nazi survivor." Performance of the "Horst Wessel Song" - also known as Die Fahne hoch ("The Flag on High") - is still illegal in Germany.

After receiving the complaint, the Youth Symphony attempted to reach out to the student composer to discuss the piece's meaning. The composer, Jonas Tarm, declined to explain his work. "I strongly believe in Gustav Mahler's quote -- that if a composer could say what he wanted to say in words, he wouldn't bother writing the music," he said later. Mr. Tarm, a 21-year-old junior at the New England Conservatory of Music, eventually relented somewhat. "It's about conflict, it's about totalitarianism, it's about polarizing nationalism." He also noted that the "Horst Wessel Song" has been quoted by other classical composers without issue.

Youth Symphony executive director Shauna Quill announced the decision to pull the piece in an email to students and parents. Along with noting that the song is still illegal in Germany, she wrote, "It was a highly unusual step for us -- one which was taken thoughtfully, but firmly, as soon as we learned the piece incorporated significant portions of music written by others that we determined were problematic for an orchestra such as ours to be asked to perform."

The National Coalition Against Censorship came out strongly against the decision to pull the piece.

Svetlana Mintcheva, the coalition's director of programs, said in a statement: "Some audience members may have painful memories associated with the official music of oppressive regimes, but that should not mean that any work that references this music must be silenced. Attempts to sanitize contemporary art do not protect young people or survivors of oppressive regimes; they can only succeed in suppressing the voice and violating the vision of creative artists, as well as in impoverishing public conversation about important, though disturbing, issues."


Long Time American Ballet Theater Head Carpenter With Bipolar Disorder Fired, Sues

Frank La Mantia, the long-time American Ballet Theater head carpenter who was famous for his hot temper, was fired four years ago following an explosive outburst on stage prior to a show in Washington, D.C. Soon after the outburst, which occurred in January 2011, Mr. La Mantia was diagnosed with bipolar disorder. Mr. La Mantia then brought suit against the theater in New York state court in late 2011, alleging that his firing had been in violation of the New York City Human Rights Law, which requires employers to reasonably accommodate employees with disabilities.

At issue in the case is when exactly Mr. La Mantia was fired. He alleges that he remained with the company until April 2011, and that the theater was aware of his condition when he was let go. Theater officials, on the other hand, contend that Mr. La Mantia was terminated on the day of his outburst, and that the theater was therefore unaware of his condition at the time of his firing.

Theater officials do, however, acknowledge that they did not inform Mr. La Mantia of his termination until after speaking with his doctor about his condition. They contend that they withheld the information in order to avoid upsetting him during his psychiatric treatment. Said the theater's general manager, David G. Lansky, "As a friend, I felt it was more detrimental at that time for him to have that information. I didn't want to hurt him any further."

In his suit, Mr. La Mantia alleges that after learning of his disorder, the theater refused to engage in a process to determine whether he could return to work following treatment. As noted above, the theater counters that Mr. La Mantia had already been terminated by the time he was diagnosed.

Last month, Judge Joan M. Kenney ruled that there was sufficient evidence for the case to go to trial. In doing so, she noted that Mr. Lansky did not record or document Mr. La Mantia's alleged immediate termination following his outburst in January 2011. Additionally, the theater's payroll manager testified that she was unaware of the termination until March or April of that year. Testimony also revealed that when speaking to Mr. La Mantia's doctor in March 2011, Mr. Lansky said he would not bring the head carpenter back without "a guarantee that there would never, ever be another incident involving an outburst or display of anger, insubordination." When the doctor could not make such a guarantee, Mr. Lansky informed Mr. La Mantia that he was fired.

Prior to trial, the two sides are scheduled to engage in court-ordered mediation next month.


March 10, 2015

EASL Section's 4th Annual Legal Aspects of Producing: An Inside Approach to Navigating the Theatrical World

Get an Inside Approach to Navigating the Theatrical World

Wednesday, March 25, 2015 - Thursday, March 26, 2015
5:30PM - 9:15PM (each night)

Snapple Theatre | 210 West 50th Street | New York, NY 10019

This program qualifies for up to 6.0 MCLE Credits in professional practice

NYSBA and CTI Members: $285.00 for Both Days | $165.00 for One Day
Non-Members: $375.00 for Both Days | $225.00 for One Day
Students: $185.00 for Both days | $95.00 for One Day

For the fourth year, EASL, in collaboration with The Commercial Theater Institute (CTI), the industry's leading training program, will host an intensive CLE seminar focusing on the roles that theatrical lawyers have in guiding both new and seasoned industry professionals through all of the stages and legal aspects of producing.

Led by the top entertainment lawyers in the business, the first day will cover all of the basics, including: acquiring underlying rights, engaging the dramatists and preparing co-producer and offering documents. The second day will focus on developmental productions, including enhancement agreements between commercial producers and not-for-profit theaters, as well as international licensing and subsidiary rights. Then veterans in the field will discuss emerging trends and issues, provide case studies and help producers and entertainment counsel navigate through some of the most common (and some esoteric) pitfalls of the theater business.

Wednesday, March 25th

Negotiating Rights and Production Contracts

Speakers: Jason P. Baruch, Esq., Sendroff and Baruch, LLP and Presenter: Susan Mindell, Esq., Levine, Plotkin & Menin, LLP

Jason and Susan will discuss the various sources of underlying rights (including films, music catalogs and life rights) and engage in mock negotiations of an underlying rights agreement and production contracts with authors.
Investor Fundamentals

Speaker: Matthew Lefferts, Esq., Franklin Weinrib Rudell & Vassallo PC

Matt will walk the group through Front Money Agreements, Joint Venture Agreements among producers, Co-Producer and Associate Producer Agreements between lead producers and major financiers and Offering Documents (i.e., the operating agreement or limited partnership agreement, and related subscription documents) between producers and investors. Matt will touch upon recent changes in the regulations allowing for crowd-funding and general solicitations.

Thursday, March 26th

Not for Profit Enhancement Agreements
Speaker: Carol Kaplan of Loeb & Loeb LLP

Carol will discuss the relationship among authors, not-for-profit theaters and commercial producers and the agreements governing the relationships among them.

International Licensing & Transfers of Stage Properties; Subsidiary Rights
Speaker: Marsha Brooks, Esq., Brooks & Distler

Marsha will discuss the life of stage properties after Broadway, including subsidiary rights and international licensing.
Emerging Trends in Theater Law

Speakers: Seth Gelblum, Esq., Loeb & Loeb LLP, Scott Lazarus, Esq., Lazarus & Harris LLP and Loren Plotkin Esq., Levine Plotkin & Menin, LLP

Seth, Scott and Loren will discuss emerging trends and hot topics in the theater such as director entitlements to author income, general solicitations and crowd funding of productions, increasing demands of underlying rights holders such as film companies, changing requirements of not-for-profit theaters mounting developmental productions, amortization and the role of the Dramatists Guild.

For more information, contact Beth Gould at bgould@nysba.org | CTI Members Looking to Register Please contact Beth Gould at 518-487-5674

Center for Art Law Case Updates

Levin v. Robert Blumenthal Gallery, LLC (Sup. Ct. NY Co., complaint filed 13 Feb. 2015) -- Painter Dean Levin is suing Robert Blumenthal Gallery (the gallery) after the gallery failed to pay Levin all of the money due to him under a contract for a solo exhibition in May 2014. Under the contract, the proceeds of the sales of his 30 paintings worth $215,00 were to be split equally between the parties. Levin alleges that he has not received an accounting of the sales and that he has only been paid $18,500 by the gallery. Levin is seeking damages in the amount of $191,500 plus punitive damages in an amount to be determined.

Kurtz Inv., Ltd. v. Village of Hinsdale, 1:2015-cv-01245 (N.D. Ill., 9 Feb. 2015) -- An Illinois investment firm has brought suit in federal court against its local government for classifying artwork on its property (a sculpture carved from a dead tree) as a sign and charging it with violating local zoning codes prohibiting "identification signs." The village manager denied an appeal of the charges and ordered the firm to remove the sculpture and pay fines. The complaint seeks damages, a declaration that the ordinances violate the First Amendment and state law, and an injunction against the town's enforcement of ordinances.

The Richard Avedon Found. v. AXA Art Ins. Corp., 151435/2014 (Sup. Ct. NY Co., 4 Feb. 2015) -- On February 4th, 2015, in the ongoing insurance-related dispute involving photographer Richard Avedon's work, Justice Joan Lobis denied plaintiff AXA Insurance Corp.'s pre-answer-motion to dismiss the Foundation's complaint, and ordered AXA to answer the amended petition. The preliminary discovery conference was scheduled for February 17th.

Gaylord v. United States, 2009-5044, (Fed. Cir., 4 Feb. 2015) -- The U.S. Court of Appeals for the Federal Circuit upheld a decision ordering the United States Postal Service to pay Frank Gaylord $540,000 for the unauthorized reproduction of his copyrighted artwork on a postage stamp. The award is a 10% royalty on $5.4 million in revenue generated from the sale of unused stamps to collectors. Gaylord's The Column serves as the national Korean War Veterans Memorial. In 2003, a photograph of the work appeared on a postage stamp without Gaylord's permission. Gaylord had previously won royalties for other uses of the stamp.

United States v. Twenty-Nine Pre-Columbian And Colonial Artifacts From Peru, et al., 13-21697-CIV-LENARD/GOODMAN (S.D. Fla., 3 Feb. 2015) -- Accused Peruvian artifact smuggler, Combe Fritz, defendant in a forfeiture action brought by the United States, lost a pre-trial motion to block custom and border protection officers from testifying at trial. The parties asked the court to schedule the trial for March 16th.

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 (http://cardozo.us2.list-manage.com/subscribe?u=78692bfa901c588ea1fe5e801&id=022731d685), the Center for Art Law subscribers receive updates about art and law-related topics through its popular art law blog (http://itsartlaw.com/blog/)and calendar of events (http://itsartlaw.com/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: www.itsartlaw.com or write to itsartlaw@gmail.com.

March 13, 2015

Who Should Investigate a Harassment Claim?

By Kristine Sova

Most employers know that an investigation needs to be conducted whenever the employer knows or suspects harassment or discrimination is occurring or has occurred in its workplace. Although much has been written by others offering tips and guidelines on how to conduct an effective investigation, less has been written about an equally important issue: that is, who should conduct the investigation.

Handling complaints of harassment and discrimination is difficult for any business, and in all instances, the investigator should be a qualified and disinterested person. This person could be you (the "you" being a founder or manager in a startup or small business) or a human resources representative, but only so long as neither person is the one who has been accused of harassment, is not close friends with the person making the complaint, the harasser, or any of the witnesses, or has some other conflict or bias relating to those involved or the complaint.

Sometimes, though, the complaint is especially sensitive, and special measures should be taken. By sensitive, I mean that the identity of the complainant, the identity of the accused, the nature and sensitivity of the allegations, the volume of complaints, the number of employees involved, the potential financial exposure, or the potential publicity present more of a high-stakes scenario for the employer. These types of cases warrant the hiring of an outside, independent investigator to conduct the investigation.

Why? Unlike you, another company employee or the company's regular legal counsel, an independent investigator has no formal ties to the organization, and is therefore, objective and neutral in a way that a person with ties to the organization or situation could never be. This is important because in harassment lawsuits, a successful defense often turns on the adequacy of the investigation, and the last thing any organization wants in a high-stakes scenario is for the investigation to be considered a sham by virtue of who conducted the investigation.

So where do you find an independent investigator? Employment lawyers, human resources/workplace consultants, and investigation firms usually offer investigative services, but choose carefully, and make sure that the investigator is qualified and experienced.

One final tip: Keep in mind that while your organization's regular legal counsel may play a role in selecting or recommending an independent investigator, if you will want your regular legal counsel to defend your organization in the event of a lawsuit, then your regular legal counsel should not serve as the investigator. As noted above, a successful defense often turns on the adequacy of the investigation, which, in turn, puts the investigation at issue in a lawsuit. If the investigation is at issue and your regular legal counsel is the investigator, then he or she will be conflicted out of representing your organization, because he or she will be witnesses in the litigation.

March 14, 2015

Week in Review

By Chris Helsel

FCC Unveils Details of New Net Neutrality Regulations

Two weeks after approving new rules reclassifying broadband Internet service as a public utility, the Federal Communications Commission (FCC, Commission) revealed extensive details of the new plan late this week. As discussed in previous Week in Review posts, the new FCC rules reclassify high-speed Internet as a telecommunications service, subject to regulation under Title II of the Communications Act. Previously, broadband Internet had been classified as an information service.

However, while the Internet will now be treated as a public utility, the new rules exempt Internet providers from the strict price controls typically applied to other, more traditional utilities.

One controversial catchall provision in the new rules requires providers to exercise "just and reasonable" conduct when setting prices, which allows the FCC to decide whether certain conduct is acceptable on a case-by-case basis.

The new rules also now give the FCC authority to police Internet privacy issues. This could bring the Commission into conflict with the Federal Trade Commission (FTC), which until now has been charged with protecting consumers' online privacy.

Opponents of the new rules, including many of the leading Internet providers, argue that the reclassification is improper and are expected to commence legal action in the near future. According to James B. Speta, a law professor at Northwestern University who specializes in telecommunications and Internet policy, the providers may argue that they should be defined not by their infrastructure (that is, as telecommunication services), but rather by the information transmitted over that infrastructure. However, Mr. Speta believes that the courts will be hesitant to overrule the FCC's decision. "Courts don't usually get in the business of second-guessing an agency's policy," he said. "They're focused on whether the agency has authority, and I think they're on firm footing."

Opponents of the new regulations also contend that the FCC order does not actually establish true net neutrality, because the catchall provision allows the Commission to pick and choose which companies are exempt from certain rules. In fact, the order says paid prioritization can be allowed with approval, though it forbids companies form paying to prioritize an affiliate's content. "What they're trying to do is set up a scheme whereby they can pick winners and losers," Representative Marsha Blackburn (R-Tenn.) said.

According to Ms. Blackburn, who introduced a bill in the House last week that would undo the new rules, net neutrality is an issue that should be decided by Congress, not the FCC.

For the Internet providers to establish standing, any legal action will have to wait until the new rules are published in The Federal Register. This could take a week or more, and the rules do not take effect until two months after they are published.


Cycling Reform Commission Report Reveals Lance Armstrong Received Special Treatment

On Sunday, the Cycling International Reform Commission (CIRC, commission) released its much-anticipated report detailing the improper relationship between American cyclist Lance Armstrong and cycling's world governing body, the International Cycling Union (UCI). The three-person commission, which was formed last year by the UCI itself, was tasked with investigating the sport's perpetual doping scandals and the UCI's failure to properly address them.

According to the report, the UCI "exempted Lance Armstrong from the rules, failed to target test him despite the suspicions, and publicly supported him against allegation of doping, even as late as 2012." Additionally, the commission found that Mr. Armstrong's attorney, Mark Levinson, helped write parts of a 2006 UCI-commissioned report that exonerated Mr. Armstrong of doping charges. The report states that "UCI, together with the Armstrong team, became directly and heavily involved in the drafting of the [2006] report, the purpose of which was only partly to expedite the publication of the report. The main goal was to ensure that the report reflected UCI's and Lance Armstrong's personal conclusions.

The report accuses UCI of giving Mr. Armstrong special treatment and shielding him from doping allegations because the sport was thriving as a result of his success. Mr. Armstrong won seven consecutive Tour de France races from 1998 through 2005, all of which were later stripped, following a United States Anti-Doping Agency (USADA) report that conclusively demonstrated that he had cheated during every race.

According to the report, UCI officials asked for and received numerous personal favors from Mr. Armstrong, including Nike watches for family members and personal letters of gifts to friends suffering from cancer. Mr. Armstrong is himself a cancer survivor and spearheaded the popular Livestrong Foundation.

In a statement released on Sunday, USADA CEO Travis Tygart said that the CIRC report demonstrates that "for more than a decade, UCI leaders treated riders and teams unequally - allowing some to be above the rules." He continued, "According to the CIRC, the UCI then conspired to allow what was sold to the public as an 'independent' report to be re-written by Armstrong's own lawyer and sports agent in order to conceal Armstrong's doping."

Following the release of the report, Mr. Armstrong apologized once again for "the many things I have done" and said he hoped that "all riders who competed and doped can feel free to come forward and help the tonic of truth heal this great sport."


Jury Finds "Blurred Lines" Infringed on Marvin Gaye Copyright

As discussed in last week's Week in Review, the writers of Robin Thicke's 2013 hit "Blurred Lines" had been accused by two of Motown star Marvin Gaye's children of plagiarizing their father's 1977 hit, "Got to Give It Up." On Tuesday, a federal jury in Los Angeles ruled that the song did in fact violate Mr. Gaye's trademark and awarded more than $7.3 million in damages.

The jury found that Mr. Thicke and his co-writer, Pharell Williams (who actually wrote the song by himself, as Mr. Thicke embarrassingly admitted in court), crossed the line from an homage to outright plagiarism. The defendants argued that while they were "inspired" by Mr. Gaye's song, their up-beat dance tune merely invoked the late-70's era and "feeling" - but did not infringe upon copyrighted material. The jury disagreed.

The plaintiffs, Nona and Frankie Gaye, were awarded $4 million in damages plus approximately $3.3 million of the profits earned by the "Blurred Lines" songwriters. The decision is believed to be one of the largest damages awards in a music copyright infringement case.

The jury determined that while "Blurred Lines" did infringe on Mr. Gaye's copyright, its writers had not done so intentionally, and the damages award reflects that. The song has earned more than $16 million in total profit.

Rapper Clifford Harris, Jr., better known as T.I., who contributed a rap verse in the song, was not found liable.

Howard E. King, a lawyer for the defendants, said that he and his clients were "extremely disappointed in the ruling today, which sets a horrible precedent for music and creativity going forward," but added that the verdict "is not going to bankrupt my clients."


FTC Sues DirecTV Over Hidden Costs to Consumers

This week, the FTC commenced an action in California federal court against the nation's largest provider of satellite television, DirecTV, charging the company with deceptively advertising the cost of a two-year promotion. The FTC claims that a "substantial portion" of DirecTV customers were affected, and the lawsuit seeks millions of dollars in refunds.

The FTC contends that DirecTV offered consumers a one-year subscription package for $19.99 per month, but that the deal actually required a two-year contract and included escalating monthly charges and a steep cancellation fee. In the second year of service, consumers were charged $45 per month and had to pay $480 to cancel the package early. Additionally, the FTC claims that DirecTV failed to sufficiently disclose that after a free three-month trial period, consumers were required to opt out of receiving premium channels to avoid being automatically charged.

Edith Ramirez, chairwoman of the FTC, released a statement outlining DirecTV's alleged improper behavior. "DirecTV sought to lock customers into longer and more expensive contracts and premium packages that were not adequately disclosed," she said. "It's a bedrock principle that the key terms of an offer to a consumer must be clear and conspicuous, not hidden in fine print."

DirecTV, which has settled two previous actions brought by the FTC for telemarketing violations, denied the allegations and vowed to vigorously defend its practices. The company's vice president for public relations, Darris Gringeri, wrote in an email, "We go above and beyond to ensure that every new customer receives all the information they need, multiple times, to make informed and intelligent decisions."


Assistant Director Convicted of Manslaughter in Death on Film Set

Hillary Schwartz, who served as first assistant director on the film "Midnight Rider," has been found guilty of involuntary manslaughter and criminal trespass in the death of second camera assistant Sarah Jones on set in February of last year. Ms. Jones was killed when a train ran through an unfinished set that was being built on an active railroad trestle bridge without proper authorization. The accident injured seven others and production was suspended the following week.

Ms. Schwartz's conviction follows the guilty pleas of the film's director and one of its executive producers. As the film's first assistant director, Ms. Schwarz shared responsibility for safety on set.

A civil suit against the railroad operator, CSX Corp., is still pending.


March 15, 2015

O'Bannon Made Simple

By, Justin P. Sievert

O'Bannon made simple (as simple as possible). Let's get right down to business.

1: The Appeal: The NCAA appealed the ruling, and the injunction imposed by Judge Claudia Wilken (Chief Federal Judge on the United States District Court for the Northern District of California) to the 9th U.S. Circuit Court of Appeals, and oral arguments are scheduled to begin on March 17th.

2: The Law: The Sherman Antitrust Act (the Sherman Act) essentially prevents business activities deemed to be anti-competitive. Section 1 of the Sherman Act, which prohibits unreasonable restraints on trade, requires plaintiffs to demonstrate that there was (1) an agreement (2) which unreasonably restrained competition (3) which affects interstate commerce. Here we are going to focus on the second element, which was the element at issue when we finally arrived at trial.

In order to demonstrate an unreasonable restraint on competition, the 9th Circuit stated that a restraint is unreasonable if its harm to competition outweighs its pro-competitive effects under a "burden-shifting framework". What is a "burden-shifting framework?" Basically, one party is first required to prove something and then the burden shifts to the other party to prove something, so on, and so forth. Here, the plaintiffs first have to prove that the restraints (NCAA legislation) produced significant anti-competitive effects within a relevant market. If demonstrated, the burden would then shift to the NCAA to show sufficient evidence of pro-competitive benefits (how the NCAA legislation actually promotes competition). If the NCAA met this burden, the burden would then shift back to the plaintiffs to show there was a less restrictive alternative available for the NCAA to achieve its objective.

3: The Ruling: Fast-forwarding to trial, and here is how the court analyzed the issues we began to discuss above. The 9th Circuit ruled for the plaintiffs and decided that the NCAA legislation unreasonably restrained trade in the market for certain educational and athletics opportunities. It also held that the NCAA's pro-competitive justifications did not justify its legislative restraints, and that these restraints could have been justified through less restrictive means. Here is an explanation of the ruling:

Plaintiff's Burden (Anticompetitive Restraints in Relevant Markets): First, as stated above, the plaintiffs first needed to demonstrate that NCAA legislation had significant anti-competitive effects on relevant markets. The court concluded that the plaintiffs presented evidence that demonstrated NCAA legislation restricting student athlete pay produced significant anti-competitive effects in two markets; the market where schools compete for football, and men's basketball student athletes, by offering reduced-cost education (athletics scholarships) and the market where colleges compete for the football and men's basketball student athletes' agreement to allow their names, images and likenesses (NILs) to be used by third parties. These markets come together because, essentially,the student athletes are granting the use of their NILs for the athletic scholarships. The court determined that without NCAA legislation, football and men's basketball student athletes would be able to sell their services without a market restraint (i.e., scholarship cap at tuition, room, board and required textbooks and not being able to receive compensation for NILs).

Defendant's Burden (Pro-competitive Effects): Once the plaintiffs met the above burden, the NCAA needed to show that its legislation offered pro-competitive benefits within that same market. The NCAA offered five such benefits, two of which were immediately rejected. The 9th Circuit did, however, take a close look at two of the NCAA's proposals. Basically, the NCAA could prevail if it could factually prove that maintaining amateurism increased overall consumer demand for college sports (amateurism defense) or that NCAA legislation restricting payment promoted the integration of education and athletics and enhanced the student athletes' educational experience (student athlete educational experience defense). Regarding the amateurism defense, the 9th Circuit essentially stated, "hey we see what you are saying, but we don't necessarily buy it" (i.e., this is limited at best, and it may justify restricting a ton of compensation, but we don't necessarily see a problem with some compensation). Regarding the student athlete experience defense, the 9th Circuit bought this argument to an extent. It could see how a cap on compensation would allow student athletes to be more integrated into the general student population, and how that enhances the student athlete experience. However, the court went on to say that this doesn't mean that a total prohibition is the best idea (or least restrictive alternative...foreshadowing!). The end result, yes we have some pro-competitive goals, but they aren't necessarily the best ways to do it.

Plaintiff's Burden (Less Restrictive Alternatives): So we know that the 9th Circuit seems to be teetering on the brink towards changing the game. The plaintiffs proposed three less restrictive alternatives: (1) raising the permissible grant in aid limit that schools can award; (2) allowing institutions to hold in trust for their student athletes a limited and equal share of licensing revenues; and (3) permitting student athletes to receive compensation from third-party endorsements. The 9th Circuit found the first option doable, because capping scholarships at cost of attendance doesn't hurt amateurism (all the money is still for education or things that a normal student would be doing) and there was no evidence that this cap would hurt customer demand (sidebar: do a lot of people subscribe to this notion? I mean, many seem fine watching pro sports, even though the athletes make a ton of money, and people support a university team because they went there, live close to the institution, or for some familial affiliation, among other reasons). The 9th Circuit also found the second option doable because the NCAA didn't provide much evidence that a limited amount, spread equally, would limit consumer demand. The court further found holding this amount in trust until the student athletes graduated or their eligibility expired would not create any issues with academic integration. The court didn't buy the third option. Why? It did not because the belief that this could cause the commercial exploitation of a kid isn't quite dead yet (insert everyone who hates on the NCAA's (no matter what they do, right or wrong) argument here..."the NCAA exploits these kids worse than anyone").

4: The Outcome: So what's the result of those findings? No more unreasonable restraints limiting pay in NCAA legislation. Well, what does that mean? It basically means that NCAA Division I football and men's basketball recruits can receive full gift in aid, and there can't be legislation that says they can't receive a limited share of NIL revenues. The injunction did, however, allow the NCAA to cap grant in aid at full cost of attendance and allowed the NCAA to offer the limited share of NIL revenues in a trust rather than immediate payment. The 9th Circuit also allowed this limited share to be capped by institutions at $5,000 and allowed institutions to create legislation that would disallow disproportionate NIL amounts to different student athletes (i.e., an institution cannot give the star football player the $5,000 while giving a third-string scholarship student athlete nothing).

March 16, 2015

Artist Agreements Part 1: Artists With Production Companies

The Agreement From Hell That An Artist Should Never Sign & How To Make It Fair

By Steve Gordon


Part 1 will focus on production companies and their contracts with artists. Part 2 will tackle deals between artists and indie labels.

Production Companies Are Not Labels

Production companies usually consist of one or two individuals with limited resources who would like to make a few demos for an artist in order to shop him/her to a real record company. Unfortunately, more than occasionally, such a company will present an agreement that locks the artist into a long term deal, makes the company the artist's music publisher, and takes a substantial cut of all the income that the artist may make in the entire entertainment business, as well as other horrors.

The first agreement we will examine in this installment is typical of a contract offered to an artist by a production company masquerading as a "label." Be warned: This agreement is a terrible deal for artists. It presents all the negative terms typically contained in an exclusive recording agreement offered by a major label, including multiple options for additional albums that could extend the duration of the agreement indefinitely, and 360 provisions designed to give the company a significant portion of the artist's income from any of his/her activities in the entertainment business. (See discussion of 360 deals below, and How to Avoid Getting Completely Screwed by a 360 Degree Deal, available at www.digitalmusicnews.com/permalink/2013/07/02/threesixty). Yet the first agreement offers none of the benefits that a major label deal contains, such as a recording budget and advance.

There are many differences between a production company and a real label, but they have at least the following in common: Both production companies and labels own or have access to recording studios and equipment, and they both have producers on payroll or relationships with indie producers who they can call on to make professional recordings. A real label, however, has the following additional assets:

• Staffers and/or freelancers who provide both traditional marketing and publicity as well as online social networking support;

• Staffers and/or freelancers who continually pitch records to terrestrial radio - still a crucial element in breaking in a new artist, especially in pop, R&B, hip hop, rock, and country;

• A video department to produce, oversee and pay for the production of promo videos and electronic press kits (EPKs);

• Relationships with popular TV shows, such as Saturday Night Live, The Tonight Show and Last Call to help the artist garner invaluable exposure;

• Relationships with leading digital services to promote an artist - for instance, by continually lobbying iTunes to feature the artist on its home page;

• Relationships with music supervisors and ad agencies to secure placements in TV shows, movies and ad campaigns;

• Distribution channels through all the big-box chains, such as Walmart, Best Buy and Target to sell physical copies of records;

• The ability to coordinate digital distribution to hundreds of digital music services throughout the world;

• The money necessary to pay staffers and freelancers to do the all the work above; and

• Perhaps most importantly, the financial capacity to pay the artist an advance on top of production costs so that he/she can quit his/her day gig.

First Agreement: Production Company Posing As Label

This form agreement came from an actual production company that presented an agreement that only a real label should offer. As we just discussed, a production company has almost none of the resources of a true record label. The production company should have offered a "shopping deal" under which it would have a limited time to find a suitable label deal for the artist. Instead, this agreement includes provisions that are completely unfair and unjustifiable. Here is an overview of the key provisions and why they should be changed:


The term of this agreement is an initial period of 15 months followed by options for the "delivery" of four additional albums. Since delivery depends on when the company decides to record each album, the contract could continue indefinitely. The artist could hire a lawyer to try to get out of this contract, but at the end of the day, the production company could contend that the contract was valid, which could impede the artist from securing another deal.

If a company is merely a production company and not a real label, it should offer a shopping deal under which it has a limited amount of time to produce at least five or six tracks (sometimes referred to as "demos") that feature the artist's best work, and shop those tracks to real labels to help the artist get to the next level. Generally, a production company has nine months to shop the demos. If the production company cannot secure such a deal, the artist should be free to terminate the agreement.

Album Options

A production company does not have the resources to help the artist as a real label could, and therefore, it should not try to trap an artist in a multiple album deal. On the other hand, if the production company secures a good deal for the artist with a reputable label, it should share with the artist in monies the record label pays to the artist, including advances and royalties for the artist's exclusive recording services. A fair deal may provide that the company will share in such revenues for the first several albums released by the label.


A reasonable royalty for producing demos and shoppingg demos andfor a deal with a label is 5% to 20%. The percentage should be based on what the label pays the artist, so if the artist's advance is $100,000, the production company would receive $5,000 to $20,000. If the artist's royalty is 15%, then the production company would get 5% to 20% of that royalty, that is, .75% to 3%. The lower royalty of 5% would be appropriate for shopping an artist who already has professionally produced recordings and the production company doesn't have to do anything but shop the artist. The higher royalty of 20% would be appropriate when the production company has to produce all new demos and perhaps even release tracks on social networks, and possibly iTunes. Yet many production companies will try take to advantage of a naive artist and demand 40% or 50%, or even more. The production company's royalty should also be limited to advances and royalties payable by the label for the artist; in a terrible deal for the artist, such as the first one analyzed in this installment, the company will also try to secure a percentage of any income the artist receives in the entertainment business, including live performance and publishing.

It is fair, though, that a production company be compensated for expenses if it secures a suitable label deal. However, the company expenses should be reasonable, documented, and approved by the artist. In addition, the amount should be deductible if a new artist, which means that if the company's expenses were $10,000 and a label is paying an advance of $100,000 for the artist's recording services, the $10,000 should be deducted from the $100,000, and the company should receive 20% of $90,000 ($18,000), and the artist should receive 80% of $90,000 ($72,000). If the expenses are not taken off the top, the company would receive 20% of $100,000 and the $10,000, that is, $30,000. The artist would only receive 80% of the balance of $70,000, that is, $56,000. If the expenses are not taken off the top, the company would receive its 20% of $100,000.00 or $20,000, leaving $80,000 remaining from which the $10,000 in expenses would be deducted, leaving $70,000 for the artist.

360 Provisions

Since income from recorded music has drastically declined in the last 15 years, labels have changed their standard deals to share in money from other income streams, including merchandise, endorsements, live performances and touring, and even appearances in TV programs or movies. As labels wish to share in all of the artist's income streams, these deals are known as "360." A major label that can provide the marketing muscle to make an artist a household name arguably deserves to share in those income streams, but a production company has not earned that. However, if the production company actually does something to help the artist make money from other activities than record sales, there is nothing wrong in rewarding it for that success. For instance, if the company finds a good paying gig playing at a private event, the company may deserve a percentage of the fee payable to the artist.

Further, if the major record label demands 360 payments from various income streams, the production company and artist may be able to negotiate separate advances against all those income streams. For example, if the record company wanted a percentage of the artist's touring revenue, the production company and the artist could demand a significant advance payment from the record company in exchange for that royalty. In that case, both the production company and the artist would benefit from the advance.

Second Agreement: A Fair Shopping Agreement

Unlike the first contract, this agreement is an example of a shopping deal that is fair to both sides. The second contract provides a 20% royalty to the production company, but it also provides significant protections for the artist. Unlike the first contract, the second contract (i) gives the artist the right to approve the choice of the "Distributor" (that is, the label), participate in the negotiation of the deal, and approve all the terms of that deal; (ii) limits the Term to nine months unless the company find a suitable deal; and (iii) limits the company's royalty to income flowing from the label, and not from any other income that the artist may earn in the entertainment business.


_______ Records, Inc.
Los Angeles, CA

Dated as of: ________ __, 2015

Mr. [Artist]

Hoboken, NJ

Dear Mr. ___________,

This agreement shall confirm and memorialize our discussions with reference to you and Company entering into an exclusive artist recording agreement regarding your performances as a musical recording artist. (You and Company are sometimes referred to herein as the "parties".) Although the parties contemplate the execution of a more formal long form recording agreement (the "Long Form Agreement"), this Letter Agreement, when signed by both you and Company, shall constitute a binding and enforceable agreement regardless of whether the Long Form Agreement is ultimately executed.

Following are the major terms and conditions which the parties agree shall form the basis of our contractual arrangement and which shall be incorporated in the Long Form Agreement (it being understood that such Long Form Agreement shall not be limited to these terms):

1) Artist: _________

2) Territory: World

3) Term: The "Initial Contract Period" shall run for fifteen (15) months from the completion and satisfactory delivery of the Initial Album hereunder. Each subsequent Contract Period, if any as provided for below, shall run for the longer of (i) 15 months from the completion and satisfactory delivery of the Masters to be delivered to Company during such Contract Period and (ii) 18 months from the commencement date of such respective Contract Period. At all times during the Term, you shall render your exclusive recording services to Company for the purpose of making Masters (as hereinafter defined) and for all other purposes as provided for herein.

As discussed in the introduction, most production companies consist of one or two individuals with some experience in the record business who may or may not be producers, but own or have access to a professional recording studio. Their goal is to land a deal for the Artist with a real label that has resources to provide the money and staff to properly market, promote, and distribute records and take the Artist to the next level or to the top.

Generally, a production company has nine months to shop demos to secure a deal. An album is not necessary to shop an artist for a label deal. Note that under the language in Paragraph 3, since delivery does not occur unless the Company records the Artist, delivery may never occur. Therefore this Agreement could go on indefinitely.

This provision needs to be altered to give the Company a reasonable time to find a suitable label deal. If it does not find one within that time, the Artist should have the right to terminate.

4) Recording Commitment/Future Options: During the Initial Contract Period, you shall record up to three (3) previously unreleased "singles" (the "Initial Track(s)"), the first of such Initial Tracks to be commercially released not later than five (5) months after the satisfactory delivery thereof (unless otherwise agreed by you and Company). During the period ending not later than nine (9) months after the commercial release of the Initial Track, Company shall have the right and option, in its sole discretion, to require you to record a full-length album comprised of not less than 10 songs (the "Initial Album"). Thereafter, Company shall have an option(s), to be exercised by Company in its sole discretion, for up to four (4) consecutive additional Contract Periods, comprised of one (1) full-length album during each Contract Period, each such option to be exercised, if at all, not later than the expiration of the then current Contract Period, subject to a ninety (90) day written notice and cure period in the event Company fails to exercise any such option. (The Initial Album, all additional audio only masters recorded by you during the Term hereunder, all audio-visual products, and all other recordings or other formats now or hereafter known embodying your musical performances are sometimes referred to individually and collectively herein as the "Master(s)".) Selection of the Masters to be recorded hereunder shall be subject to the mutual cooperation and agreement of the parties, it being understood and agreed that Company shall have the final word with respect to selection of Masters and for all other creative matters, including, but not limited to, the selection of the songs to be recorded, producers of Masters and album artwork.

A good shopping deal for an artist makes a production company adhere to a firm deadline. If they do not find a deal within nine months, for instance, the Artist can walk away. On the other hand, the company should have the right to share in the Artist's success from a record deal that the production company helped the Artist secure. A typical provision to address this would read as follows:

"The term of this agreement ("Term") shall commence upon the date of this Deal Memorandum and continue until the commercial release by a Distributor in the United States of the fourth (4th) full-length, studio album containing Artist's featured performances and delivered to such Distributor in fulfillment the Artist's recording obligation to the Distributor. Notwithstanding the foregoing, if an agreement for Artist's exclusive recording services between the Company and a Distributor (a "Distribution Agreement") has not been executed within nine (9) months from the date of completion of production of the Initial Masters hereunder (the "Shopping Period"), the Artist may terminate the Agreement."

5) Recording Costs/Advances: Company shall administer and pay all pre-approved recording costs in connection with the production of the Masters. All master recording costs, video production costs, independent marketing and promotion costs, all other sums paid by Company to you or on your behalf, (whether related to Other Music Activities or otherwise) and all other typically recoupable costs and expenses incurred by Company hereunder shall constitute "Advances", fully recoupable by Company from any royalties or other sums to be paid to you (or on your behalf) by us or any third party (excluding mechanical royalties) under this Agreement or any other agreement between you and Company.

There are two things wrong with this provision. First, "all recording costs" should only be expenses that are reasonable, documented, and, if possible, approved by the Artist. Second, in a real recording agreement, the Artist should receive a real advance so he/she can quit his/her day gig and move out of his/her parent's house.

6) Royalties: As your sole and complete consideration of your services rendered hereunder, Company shall pay you a sum equal to thirty five (35%) percent of the net revenues received by or credited to Company in connection with the exploitation of the Masters, after recoupment by Company of all Advances, recording costs and expenses and all other chargeable costs related to the distribution and/or exploitation of the Masters, including, but not limited to manufacturing costs, third party distribution fees and charges, and marketing and promotional expenses, it being understood that there shall be no so-called "double-dipping" and such recoupable expenses shall only be charged to your royalty account once. It is understood and agreed that Company's otherwise standard policies would apply to the calculation and payment of all royalties (e.g., free goods, program discounts, reserves, reductions, etc.). You acknowledge and agree that no royalties of any kind nor any other compensation (other than mechanical royalties, if any) shall be due to you except as provided in this paragraph. Company shall account and pay you any sums due not semi-annually, within ninety days after the end of each semi-annual period ending on June 29th and December 31st. Company shall be entitled to withhold any and all taxes as required by law with respect to any sums payable to you hereunder.

If the Company were a real label, a 35% percent royalty payable to the Artist on record sales would not be unfair. However, because the Company is only a production company, the goal is not to sell records but rather to secure a suitable label deal. When the production company achieves that, it should share in the revenues generated by the major label, but not 65%. The following clause should be added to the Royalties section of the agreement:

"Notwithstanding anything to the contrary above, If Company enters into Distribution Agreement, with your prior approval, the Company shall receive [5% to 20%] (see introduction) of any advances or royalties payable by the Distributor for the recording services of the Artist. The Artist shall receive the balance, that is, 80% of such Advances or royalties for the first four (4) Albums. Notwithstanding anything to the contrary above, company shall have the right to deduct its actual documented approved recording costs that have not already been recouped by Company."

7) Name and Likeness Rights/Website: Company shall have the perpetual right, which such right shall be exclusive during the term and non-exclusive thereafter, without liability to any person, to use and to authorize other persons to use your name, likeness and biographical material for purposes of advertising, marketing, promotion and trade in connection with making and/or exploitation of Maters, recordings, audio-visual materials, and all other materials hereunder. You hereby grant to Company the exclusive right, during the Term (and the non-exclusive right thereafter, with respect to an alternate name), to establish and maintain all Artist-branded digital sites and social networking sites, including a website having the URL "_________.com" or any similar designation based on or containing your professional name. You shall make yourself available at Company's reasonable request and expense and upon reasonable notice to appear for photographs, posters, cover art, interviews with representatives of the media and publicity personnel and to perform other reasonable promotional functions.

This clause should be added:

"Notwithstanding, anything to the contrary above, (i) Artist shall have the right to continue his YouTube and Facebook pages; and (ii) all content in Artist branded sites shall be subject to Artist's approval."

8) Representation/Warranty/Indemnity: You warrant and represent that you have been, are and shall continue to be possessed of the full right to enter into this agreement and perform hereunder and that your entering into this agreement and performing hereunder shall not infringe upon the rights of any person or entity. Upon the expiration or other termination of this Agreement, you agree not to re-record any composition embodied on a Master hereunder until the date that is the later of i) three years after the end of the Term and iii) five years from the completion of recording of such Master hereunder. You indemnify us against any losses or damage (including reasonable attorneys' fees) arising out of any claims by any third parties which are inconsistent with any warranty made by you herein or any condition contained herein. You shall promptly pay us on demand any sums for which you are liable under the proceeding sentence and, alternatively, Company shall be entitled to withhold any such sums from monies otherwise payable to you hereunder.

9) Ownership: The Masters (including, but not limited to, any audio-visual recordings related thereto), all duplicates and derivatives thereof, all records made therefrom or duplicates or derivatives (including the copyright and renewal and/or extension of such copyright), and all artwork and other intellectual property created or obtained by Company, together with the performances embodied therein, all in any form, manner, or medium now or hereafter known, shall be exclusively and perpetually property of Company, free from any claim whatsoever by you or any person deriving any rights from you. The Masters shall be deemed a work made for hire within the meanings of the United States Copyright Act. If the Masters are determined not to be a work made for hire, they will be deemed transferred to Company by this agreement, together with all rights in it. Accordingly, the Masters, together with yours and all the performances embodied on them, shall be the sole property of Company, its assignees and successors in perpetuity and throughout the world, free from any claims by you or any other person; and Company shall have the exclusive right to copyright the Master in its name as the author and owner thereof and to secure any and all renewals and extensions of such copyright throughout the world. You will execute and deliver to Company such instruments of transfer and other documents regarding the rights of Company in the Master as Company may reasonably request to carry out the purposes of this Agreement, and Company may sign such documents in your name and make appropriate disposition of them.

This paragraph states that all "Masters shall be deemed work for hire" for the company. Work for hire means that all the copyrights in the recordings are owned by the company, and that the company will have the right to use them for any purpose after the termination of the agreement. In a pro-artist agreement, the copyrights in the master recordings would be owned jointly by the Artist and the Company. This means that if the Agreement terminates, neither the Artist nor the company would have the right to exploit the master recordings without mutual approval.

Without limiting the generality of the foregoing, Company, or any person authorized by Company shall have the perpetual unlimited, exclusive right, throughout the world: (i) to manufacture records, video-records, and any derivatives thereof derived from the Master in any form, in any medium, and/or by any method now or hereafter known; (ii) to sell, transfer or otherwise deal in the same under any trademarks, trade names and labels; (iii) to reproduce, adapt, transmit, distribute, broadcast, perform, communicate and otherwise use the Master in any medium or in any manner, including but not limited to use in physical, digital, electronic, mobile and internet formats; (iv) to cause or permit the public performance of the Master, or derivatives thereof, through any and all media; (v) to add to, delete from, edit, mix and otherwise alter the Master without restriction; and (vi) to exploit the Master and derivatives therefrom through any and all means, whether now or hereafter known, all without payment of any compensation to you except the royalties as described in this Agreement. In the alternative Company may, at its election, refrain from doing any or all of the foregoing.

10) Mechanical License: With respect to any musical compositions embodied on the Masters which are owned or controlled by you or your designees, you hereby grant to us and our designees the irrevocable non-exclusive right to reproduce the Song on records (including digitally delivered reproductions) and to distribute any of those records in the United States and Canada. Mechanical royalties shall be payable on a maximum of ten (10) songs on each album, on net sales of such records at the following rates: (i) on such records sold in the United States, the rate shall be the United States mechanical rate. The "United States mechanical rate" shall mean the amount equal to seventy-five percent (75%) of the minimum statutory royalty rate (without regard to playing time) provided for in the United States Copyright Act which is applicable to the reproduction of musical compositions as of the date of initial release of the Master concerned; and (ii) on such records sold in Canada, the rate shall be the Canadian mechanical rate. The "Canadian mechanical rate" shall mean the amount equal to seventy-five percent (75%) of the minimum statutory royalty rate (without regard to playing time) provided for in the Canadian Copyright Act which is applicable to the reproduction of musical compositions as of the date of initial release of the Master concerned; (iii) the mechanical royalty rate for a Song contained on a mid-price record or budget record shall be three-fourths (3/4ths) of the United States mechanical rate or the Canadian mechanical rate; as applicable; and no mechanical royalties shall be payable on any phonograph records for which no royalties are payable by Company. If the copyright in a musical composition is owned or controlled by a person, firm or corporation other than you, you shall cause that person, firm or corporation to grant to us and our designees the same rights as you are required to grant to us and our designees hereunder. You hereby grant to us and our designees at no fee, royalty or other cost to us or our designees, the irrevocable, non-exclusive, worldwide right to reproduce and publicly perform each Song on audio-visual recordings, to distribute audio-visual records embodying those audio-visual recordings, and otherwise to exploit in any manner and through any media those audio-visual recordings. You grant to us and our designees, or shall cause to be granted to us, the irrevocable right to print and reproduce, at our election, the title and lyrics to the Song on the packaging of phonograph records embodying Masters throughout the world in perpetuity, without payment to you or any other person, firm or corporation of any monies or other consideration in connection therewith. Any assignment, license or other agreement made with respect to the Song shall be subject to the terms hereof.

This paragraph is known as the Controlled Composition Clause. It means that the Artist who writes his own songs does receive mechanical royalties from record sales by the Company, but the Company pays only ¾ of the statutory rate of 9.1 cents per song instead of the full rate. It is a standard clause in any major label or major indie deal and usually cannot be negotiated away unless the Artist has tremendous bargaining power. However in the context of this Agreement, it is usually irrelevant as the Company will probably not sell records, or if it does, perhaps only one or two tracks in order to spark a real label's interest in the Artist.

11) Co-Publishing. The parties agree that you (or your affiliated publishing company) and Company's designated publishing affiliate shall be co-publishers with respect to music and lyrics of all compositions written, owned and/or controlled by you during the Term. Accordingly, you (or your affiliated publishing company) hereby irrevocably and absolutely assign, convey and set over to Company (or its designee), or will cause Company (or its designee) to receive an assignment, of fifty (50%) percent of all right, title and interest (including the worldwide copyright and all extensions and renewals thereof) in and to each and every controlled composition which is recorded hereunder. Upon request, you agree to execute and deliver to Company, or to cause to be executed and delivered to Company (or its designee) a separate Co-publishing Agreement with respect to each such controlled composition in accordance with standard forms of such agreements. If you shall fail to promptly execute such agreements, you hereby grant to Company the right to sign same on your behalf, though Company's failure to exercise the rights granted to use such authority shall not diminish Company's rights as set forth within this Agreement. Company shall be the exclusive administrator of 100% of all rights in and to such controlled compositions, and it (and/or its designees) shall be entitled to exercise any and all rights with respect to the control, exploitation and administration of such compositions including, without limitation, the sole right to grant licenses, collect all income and to use the name, likeness and biographical material of each composer, lyricist and songwriter hereunder in connection with such composition for the full term of copyright (including all renewals and extensions thereof) in and to such Composition. From all sums actually earned and received by Company in the United States of America from the exploitation of such Composition throughout the world (the "Gross Receipts"), Company shall: (i) deduct and/or retain all out-of-pocket costs incurred by Company in connection with the exploitation and protection of such Composition; (ii) deduct and pay royalties payable to the writers (including you) of the Composition (which you warrant and represent shall not exceed fifty (50%) percent of the Gross Receipts); and (iii) pay to you an amount equal to fifty (50%) percent of the balance remaining after deducting the aggregate sums set forth in subparagraphs (i), (ii) and (iii) above, and the remaining fifty (50%) percent thereof shall be retained by Company for its sole use and benefit. Accountings for such royalties shall be rendered semi-annually subject to all the terms and provisions of Paragraph 11 hereof.

The Artist should delete this paragraph 11 completely. Since a production company is not a music publishing company, which is equipped to exploit songs and collect income from them all around the world, the Company should not become the Artist's music publishing company.

12) Other Music Activities. You shall pay to Company a sum equal to thirty (30%) percent of all OMA Income ("the OMA Payment", provided that the OMA Payment in connection with your touring and other live musical performances shall be deemed to be twenty (20%) percent). You authorize Company to collect all OMA Income on your behalf but to the extent such is not collected by Company, within fifteen (15) days of the end of each calendar quarter of the Term, you will send Company a detailed written account of all OMA Income received by you or on your behalf during such accounting period and the amount of the OMA Payment accordingly payable to Company. On receipt of each such accounting statement, Company will elect either to deduct the OMA Payment from monies (including royalties) due to you hereunder or to receive payment, in which case you shall pay the amounts shown to be due in each accounting statement within ten (10) days of the date of such statement. You agree to maintain complete and accurate books and records relating to OMA Income. At any time within two (2) years after any accounting statement is rendered to Company hereunder, Company shall have the right to inspect such books and records on reasonable notice but not more than once during each year. As used herein, "Other Music Activities" shall mean all of your professional activities connected to the entertainment industry including, without limitation, merchandising, advertising, sponsorship, endorsements and tie-ins, touring and all other live performances, and TV or film appearances (but specifically excluding music publishing, any fees or royalties you receive for acting as a "producer" of records for others, record royalties hereunder, and any other income payable to you which Company is otherwise participating in (i.e., there shall be no "double dipping" with respect to OMA Income). "OMA Income" shall mean all gross sums paid or payable to you with respect to your "Other Music Activities" during the Term or with respect to any and all agreements related thereto entered into during the Term and for a period of three months thereafter (whether received during the term or thereafter), after deduction of third party out-of-pocket expenses or deductions reasonably incurred in connection with the Other Music Activities, including booking agent commissions, monies payable to third party co-publishers and co-writers of musical compositions written by you and reimbursement for actual out-of-pocket expenses incurred by you in connection therewith (but which such deduction shall not apply to production, travel, musician, or other show related costs for your live performance activities or management commissions). Upon request by Company, you hereby agree to execute standard Letters of Direction authorizing and directing any third parties to pay any such OMA Payments directly to Company.

The Artist should delete this paragraph completely for the reasons discussed in the introduction to this installment (see 360 Provisions). Yet in fairness to the Company, if it does something to deserve ancillary revenues, there is nothing wrong with compensating it for its efforts. Here is an alternative to harsh 360 clauses compensating the Company if it actually helps the Artist make money:

Ancillary Rights.

(a) Company may, from time to time, secure and coordinate "synch" placements of any of the Artist's Songs in motion pictures, TV program, ad campaigns, video games etc. ("Company Synchs"). It is understood that Company is not a music publisher and shall not be required to procure any synchs for Artist. If Company does secure and coordinate any live personal appearance for the Artist, Company shall be entitled to collect all gross revenue from the Company Synchs. Company shall pay Artist seventy-five percent (75%) of gross revenue derived from such Company Synchs. Company shall make such payment to Artist within three (3) days of Company's receipt of such monies together with a comprehensive accounting statement. Notwithstanding anything to the contrary above, (i) Artist shall have the right to approve Company Synchs and the synch fee; (ii) Artist has no obligation to Company for any synch placement not secured by Company. Company shall have no other rights in Artist's songs except as set forth in this Subparagraph.

(b) Company may, from time to time, secure and coordinate live personal appearances for Artist and shall negotiate the Artist's compensation in connection therewith for concerts or live performances ("Company Shows"). It is understood that Company is not an employment agency or a talent agent and shall not be required to procure any employment for Artist, and that Company has not represented that it will procure employment for Artist. Any live personal appearance that Company does secure and coordinate for the Artist shall be incidental to its role as a record company. Company shall pay Artist seventy-five percent (75%) of Net Revenue derived from such Company Show. "Net Revenue" as used in this paragraph shall mean all gross revenue actually received by Company less documented reasonable expenses incurred by Company in connection with such Company Show such as lighting and sound. Company shall make such payment to Artist within three (3) days of Company's receipt of such Net Revenues together with a comprehensive accounting statement. Notwithstanding anything to the contrary above, (i) Artist shall have the right to pre-approve each Company show and her performance fee; (ii) Artist has no obligation to Company in connection with any live performance not secured by Company.

13) Miscellaneous. This agreement is the entire agreement between the parties with respect to the contents hereof, supersedes all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties, and shall not be modified, except by an instrument in writing, signed by each of the parties duly authorized to execute such modification. Company may assign its rights under this Agreement in whole or in part.

There is a great deal of boilerplate language here that may be legally necessary, but is not more favorable to one party than the other. Here is one truly insidious sentence: "Company may assign its rights under this Agreement in whole or in part."

This would mean that the Company could assign the agreement (together with the five albums that the Company is entitled to) to any other company or individual. The Company could thereby literally sell the Agreement. This sentence should be modified to allow the Artist to approve any assignment of the Agreement to a third party.

You may not assign this agreement or your rights or responsibilities hereunder without the prior approval of Company, such approval not to unreasonably withheld with respect to a so-called "furnishing company" owned or controlled by you which is exclusively entitled to your recording services. A waiver by either party of any term or condition of this agreement shall not be deemed or construed as a waiver of such term or condition for the future, or of any subsequent breach thereof. All remedies, rights, undertakings, obligations, and agreements contained herein shall be cumulative and none of them shall be in limitation of any other remedy, right, undertaking, obligation or agreement of either party. No breach of this agreement by either party shall be deemed material, unless the non-breaching party shall have given the other party notice of such breach and such breaching party shall fail to cure such breach within 30 days after receipt of such notice. If any part of this agreement shall be determined to be invalid or unenforceable, the remainder of this agreement shall remain in full force and effect. This Agreement has been entered into in the State of California and the validity, interpretation and legal effect of this Agreement shall be governed by the laws of California applicable to contracts entered into and performed entirely within California, with respect to the determination of any claim, dispute or disagreement which may arise out of the interpretation, performance or breach of this Agreement. All claims, disputes or disagreements which may arise out of the interpretation, performance or breach of this Agreement shall be submitted exclusively to the jurisdiction of the appropriate court in California. You acknowledge that Company has given you the right and opportunity to have this Agreement reviewed by an attorney of your choice having competence in the music industry, and you have done so. You further acknowledge that said attorney has reviewed with you the terms of this Agreement and that he/she has advised you as to all legal ramifications and consequences of your entering into this Agreement. You acknowledge that your services hereunder are of a special, unique, unusual, extraordinary and intellectual character and in the event of a breach by you of any material term, condition, representation, warranty or covenant herein, Company will be caused irreparable injury and damage. You expressly agree that Company shall be entitled to the remedies of injunction and other equitable relief to prevent or remedy a breach, which relief shall be in addition to any other rights or remedies, for damages or otherwise, which Company may have.

Under the last sentence above, the Company could seek a court to enjoin the Artist for recording for another record label.

If because of: an Act of God, inevitable accident; fire; lockout; strike or other labor dispute; riot or civil commotion; act of public enemy; enactment, rule, order or act of any government or governmental instrumentality (whether federal, state, local or foreign); failure or delay of transportation facilities; or other cause of a similar or different nature not reasonably within Company's control, Company is materially hampered in the recording, manufacture, distribution or sale of records, then, without limiting Company's rights, Company shall have the option by giving you notice to suspend the running of the then current Contract Period for the duration of any such contingency plus such additional time as is necessary so that Company shall have no less then sixty (60) days after the cessation of such contingency in which to exercise its option, if any, to extend the Term of this Agreement for the next following Option Period.

The parties agree that, upon both of our signatures below, this letter shall constitute a valid and binding agreement regarding the exclusive rights to your services. Notwithstanding the contemplation of the Long Form Agreement, all legal and equitable rights, obligations and remedies of both parties attach hereto with no limitation.


__________ Records Inc. Artist

_____________________ ___________________
An Authorized Signatory SS#:


___________ Productions, Inc.
c/o__________, Esq.
f/s/o _______ [Producer]
New York, NY
As of ______, 2015

__________ Music, LLC
f/so __________ [Artist]
c/o __________, Esq. [Attorney]
Los Angeles, CA

Note that the Artist was represented by experienced counsel.

Re: Deal Memorandum

Ladies and Gentlemen:

The following sets forth the terms on which (i) ____________ Inc. ("Company") f/s/o _______ and ___________Music LLC ("you") furnishing the services of _______ ("Artist") agree to form a California limited liability company (the "Venture") to furnish the exclusive services of Artist to a Distributor (as defined herein), (ii) Artist will furnish her exclusive recording services to the Venture, and (iii) Company will furnish the services of _______ ("Producer") to the Venture to produce the Venture Masters (defined below).

This agreement was essentially between two individuals: an artist and a producer who owned a production company. "Company" is the name of the producer's corporation. The Artist entered into this agreement through a "furnishing" company as well. By entering into the deal as companies rather than individuals, both parties secured "limited liability" and certain tax advantages. Limited liability means that even if a company consists of only one individual, the personal assets of that individual (such as his/her personal bank account, house and car) are not be subject to liability.

As used herein, the term "Distributor" shall mean Sony Music, Universal Music and Warner Music, their wholly owned affiliated labels (collectively "Major Label"); a major independent record company, or an indie record label that is regularly distributed by a Major Label.

This Agreement uses the word "Distributor" to refer to the record company with which the Company is trying to secure a deal. The definition of "Distributor" will vary, but it is in the interest of the Artist to narrow this definition to the three major labels --- Warner, Sony, and Universal, and their wholly owned label affiliates, such as Atlantic, Epic, Columbia, Republic, and Interscope, or a major independent, such as Beggars Banquet (the Strokes), Big Machine (Taylor Swift), or Glassnotes (Mumford and Sons). Yet the Company may want a broader definition embracing companies with national distribution, such as RED, ADA, and Caroline, which are owned by the majors but are essentially distributors who seldom provide advances or marketing support.

The definition of "Distributor" is not as important in this Agreement as it could otherwise be because, as set forth in Para. 2, distribution shall be subject to the prior written approval" of the Artist.

1. Organization of the Venture. Contemporaneously with the execution of this Deal Memorandum, Company and you will cause to be filed Articles of Organization in the State of New Jersey organizing a limited liability company called "_______ LLC", such name deemed approved by both Company and you hereunder (or, if such name is not available, another name mutually agreed upon by Company and Artist). The Venture shall be owned 20% by Company and 80% by you.

Note that the Artist will receive 80% of any income; the Company's royalty is limited to 20% -- compared to 65% for the production company in the first agreement discussed above.

2. Artist Obligations. The term of this agreement ("Term") shall commence upon the date of this Deal Memorandum and continue until the commercial release by a Distributor in the United States of the fourth (4th) full-length, studio album containing Artist's featured performances and delivered to such Distributor in fulfillment the Venture's recording obligation to the Distributor. Notwithstanding the foregoing, if an agreement for Artist's exclusive recording services between the Venture and a Distributor (a "Distribution Agreement") has not been executed, or substantially negotiated, within nine (9) months from the date of completion of production of the Initial Masters hereunder (the "Shopping Period"), upon written notice, via registered mail, return receipt requested, by Artist given to Company, the parties' obligations hereunder shall terminate and Artist shall be released from any further obligations to the Venture.

The maximum duration of this Agreement is for four albums. Note that unless the Artist has approved a Distribution Agreement within nine months from the date of completion of production of the Initial Masters (six tracks), the Artist has the right to terminate the deal with the Company.

In such event, neither Company nor you shall have any right to exploit the Venture Masters without the express written permission of Company and you. All master recordings containing Artist's featured performances that are recorded during the Term, including without limitation the Initial Masters (defined below), shall be referred to as "Venture Masters" and shall be deemed "works made for hire" specially commissioned by the Venture.

If the contract terminates, neither the Company nor the Artist has the right to exploit the Initial Masters without mutual approval. Again, this is very favorable for the Artist. In a pro-company agreement, the Company would exclusively own the copyrights in the recordings and be able to exploit and/or license any masters made during the term. In this agreement the Venture (that is the Company and the Artist) jointly own the copyrights.

Notwithstanding the foregoing, if during the Shopping Period Venture receives a bona fide written offer from a Distributor to enter into a Distribution Agreement and the Distribution Agreement is not fully executed prior to the expiration of the Shopping Period, then Shopping Period shall automatically be extended for an additional ninety (90) days.

Company needs this provision in order to wrap up any negotiation that are ongoing as of the end of the nine month shopping period.

Further, notwithstanding anything to the contrary expressed in or implied by this Agreement, it is understood and agreed that the choice of the Distributor, as well as the terms and provisions of the Distribution Agreement, shall be subject to the prior written approval of Company and you, such approval not to be unreasonably withheld or delayed; further, Company and you agree that if you choose not to enter into a Distribution Agreement with a Distributor during the Shopping Period then you shall not directly or indirectly deal with such Distributor (or its affiliates) for a period of twelve (12) months following the expiration of the Shopping Period.

Here it is made clear that the Artist has the right to approve the terms of the Distribution Agreement as well as the Distributor. This is absolutely key. Without the right to approve the Distribution Agreement, the Company could enter into a deal that is bad for the Artist, and the Artist would be powerless to prevent it. The Company may argue that the Distributor will not finalize the deal if the Artist does not sign an "inducement" letter confirming his assent to the agreement. However, without the right to approve the deal, if the Artist did not sign the inducement letter, the Artist would arguably be in breach of the Agreement with the Company. The Artist should at least have approval of the major deal points including duration, number of options for additional albums, recording budget, advances, and royalties.

3. Company Obligations. Company agrees as follows:

a. Engagement. Promptly after the execution of this Deal memorandum, Company will cause Producer to record and deliver to the Venture six (6) Masters (the "Initial Masters"). In addition, provided that a Distribution Agreement is entered into or substantially negotiated during the Shopping Period, the Venture shall engage Company to, and Company will cause Producer to produce and deliver three (3) Venture Masters per album for potential inclusion on each of the first four (4) "commitment" albums to be delivered to the Distributor pursuant to the Distribution Agreement. For the purposes hereof, the Initial Masters and all other Venture Masters produced by Producer shall be referred to as "Produced Masters". The first four (4) "commitment" albums to be delivered to the Distributor pursuant to the Distribution Agreement are sometimes referred to as "First Album", "Second Album", "Third Album" and "Fourth Album", respectively.

In this Agreement, the Company was furnishing the services of a top notch producer. In addition to shopping the Artist to labels, the Agreement contemplates that the producer would also have a role in producing tracks for the Artist after he/she got signed.

b. Producer Advance; Costs. In respect of the Initial Masters and any other Produced Masters on the First Album, the Venture shall pay, or cause the Distributor to pay, to Company, as advances, recoupable against the Producer's Royalty (the "Producer Advances"), $15,000.00 per Master payable as follows: (1) $7,500.00 payable promptly upon execution of the Distribution Agreement, and (2) the balance promptly following delivery and acceptance by the Distributor of technically satisfactory Masters. In addition, use of Company's studio in recording, edition and/or mixing any Produced Masters shall be billed in accordance with a budget that has been approved by both you and Company, which budget is attached hereto as Exhibit "A" (the "Approved Budget").

This provision and the next does not require the label to use the producer's tracks, but does guarantee that the producer would receive advances and a royalty (also referred to as "points") on the first four albums.

c. Producer Royalty. The Venture shall pay Company (or cause the Distributor to pay to Company) a producer's royalty (the "Producer's Royalty") of three percent (3%) of SRLP in respect of net sales of full-priced records through normal retail channels in the United States ("USNRC") embodying solely the Produced Masters. Notwithstanding the foregoing, in no event shall the Producer Royalty hereunder be lower than the royalty equivalent of three produced tracks per album, through the fourth album. Producer's Royalty on all other sales and exploitations shall be reduced, adjusted, calculated and paid in the same proportion, and at the same times, as is the Venture's basic "all in" royalty. As to records not consisting entirely of the Produced Masters, the royalty rat shall be prorated by multiplying such royalty rate by a fraction, the numerator of which is the number of Produced Masters embodied thereon and the denominator of which is the total number of royalty bearing masters (including the Produced Masters) embodied thereon. Producer's Royalty shall be paid retroactive to the first record sold or other exploitation after recoupment of the recoupable portion of all recording costs incurred in connection with the Album on which they are embodied at the net artist rate (i.e., the "all in" royalty payable to the Venture less the Producer's Royalty payable to Company and the royalties payable to all other producers, mixers and engineers of such Masters), subject, however, to recoupment of the unrecouped portion of the Producer Advance. There shall be no reduction in the Producer's Royalty due to; (i) amounts payable to mixers or executive producers, or (ii) after delivery and acceptance of any Master, amounts payable to any third party producer. In calculating "recording costs" for recoupment purposes, "recording costs" shall not include any "in pocket" advances payable to the Venture or Artist. Producer's Royalty shall be paid directly to Company by the Distributor pursuant to an irrevocable letter of direction.

3% to 5% is a normal producer royalty.

d. Credit. The Venture shall instruct, and use reasonable efforts to cause, Distributor to accord Producer the following credit in all trade and consumer advertisements relating to any Produced Master of ½ page or larger, and in and on the outer packaging, label copy, liner notes and labels of all records embodying the Produced Master:

"Produced by ______"

The Venture shall instruct, and use its best efforts to cause, Distributor to include Company's logo (the "Company Logo") and Artist's Logo (the "Artist Logo") in all trade and consumer advertisements relating to any record embodying any Venture Master of ¼ page or larger, and in and on the outer packaging, label copy, liner notes and labels of all records (including promotional and commercial singles) embodying any Venture Master. Each such logo shall be no less prominent, and no smaller in size, than any other logos (including the other party's logo) included on such records or in such advertisements, including, without limitation, Distributor's logo. In the event that any Distributor will not agree to include both the Artist Logo and the Company Logo on such terms, Company and Artist shall negotiate in good faith to determine which logos, if any, will be so included.

e. Controlled Compositions. Producer's interest in any compositions embodied on any Produced Masters shall be subject to any so-called "controlled composition" provisions contained in the Distribution Agreement between the Venture and Distributor.

See comments for paragraph 10 in the first agreement.

4. Management, Voting and Control.

a. The business and affairs of the Venture shall be managed by Company and you. Company and you will have joint decision making authority and all decisions made regarding the business and affairs of the Venture must be mutually approved by you and the Company, in writing, including, without limitation, those decisions relating to: (i) determining which Distributor(s) with which to enter into Distribution Agreement(s), and (ii) the release and/or exploitation of any Master(s). For the avoidance of doubt, the Venture shall not enter into any agreements or other undertakings regarding any Venture Master prior to the execution of a Distribution Agreement, including, without limitation, any license agreement or otherwise, without unanimous written consent of you and Company.

b. Artist and Company further agree as follows: (i) Company's counsel and Artist's counsel and Artist shall jointly represent the Venture in connection with any Distribution Agreement(s) to be entered into by the Venture, and (ii) Artist's counsel shall represent Artist's interests in connection with any additional obligations that Artist may have to any Distributor (such as an obligation to deliver additional commitment albums). Company's counsel and Artist's counsel shall split any legal fees paid or reimbursed by any Distributor in connection with the Distribution Agreement and the Venture shall be responsible for paying, or shall make appropriate arrangements for discharging, all reasonable legal fees of Artist's counsel and Company's counsel in connection with any Distribution Agreement(s) that are not paid or reimbursed by the Distributor.

This is a very favorable provision for the Artist, as it not only gives him/her approval, but lets his/her attorney actively engage in negotiations with the label.

5. Allocations and Distributions.

a. All advances and royalties (including audit settlements) received by the Venture, or credited to the Venture against an advance previously paid to the Venture, shall be distributed as follows:

i. First, to the reimbursement of any actual out-of-pocket expenses incurred by the Venture, or by Artist or Company with the Venture's prior written approval, in connection with the Initial Masters, including the Approved Budget, and in soliciting or negotiating any Distribution Agreement (including, without limitation, legal fees incurred by the Venture pursuant to paragraph 4(b) above); and

ii. Then, after payment of any Producer Advances, Producing Royalty (subject always to recoupment of recording costs and/or the Producer Advances on the terms set forth above) and/or the Approved Budget amount due to Company, 80% to you and 20% to Company.

b. Company and Artist agree to require, as a condition of any Distribution Agreement, any Distributor to agree to account directly to: (i) Company for any Producer Royalties that may become payable, (ii) you for 80% of all royalties that may be payable to the Venture under any Distribution Agreement (net only of the Producer Royalties payable to Company, if any); and (iii) Company for 20% of all royalties that may be payable to Venture under any Distribution Agreement (net only of the Producer Royalties payable to Company, if any). For the avoidance of doubt, as between Company and Artist, subject to the payment of the Producer Advances due to Company pursuant to paragraph 3(b) above, 80% of all "in pocket" advances payable under any Distribution Agreement shall be payable to you.

Note that the Company's compensation is limited to monies payable by the label, not to any monies that the Artist may earn in the entertainment business. This is not a 360 deal, which is a good thing for the Artist.

c. Except as expressly otherwise provided herein, each of you and Company shall be responsible for payment of its own attorney's fees, personal management commissions and/or business management commissions out of its share of distributions and/or payments by the Venture. Under no circumstances shall the Venture be responsible for payment of commissions in respect of personal managers, business managers or other advisors engaged by Artist, Producer or Company unless such person was retained expressly to represent the Venture with the prior written consent of both Artist and Company.

6. Other.

a. The Venture shall maintain accurate books and records of all monies paid to or collected by the Venture pursuant to any Distribution Agreement(s). The Venture's books and records relating thereto may be inspected during regular business hours by a certified public accountant or attorney at law designated by Company or you and at the inspecting party's expense, at the place where same are regularly, maintained, upon thirty (30) days' written notice to the Venture; provided, however, that such examination shall not be permitted more than once a calendar year.

b. Neither party may assign, convey, sell, transfer, give, liquidate, encumber, or in any way alienate ("Transfer") all or any part of his or its respective membership interest in the Venture without the prior written consent of the non-transferring party, which consent may be given or withheld in the sole discretion of such non-transferring party. Any attempted Transfer of all or any part of a membership interest without the necessary consent, or as otherwise permitted hereunder, shall be null and void and shall have no effect whatsoever.

Unlike the first agreement, the Company is not trying to give itself the right to sell the contract.

7. Definitive Agreement. You and Company hereby acknowledge that it is the parties' mutual intent to enter into a more formal operating agreement (the "Operating Agreement"), as well as a long-form producer agreement (the "Producer Agreement") and a Furnishing Agreement, at a later date. You and Company hereby agree to negotiate in good faith the terms of such agreements, provided that such agreements shall not contain any provision contrary to any material provision set forth herein, unless mutually agreed in writing by both parties. Until such time, this Deal Memorandum shall serve as the operating agreement between the parties regarding the Venture.


____________ PRODUCTIONS, INC.


____________ MUSIC, LLC


Steve Gordon is an entertainment attorney with over 20 years of experience in the entertainment industry, including 10 years as Director of Business Affairs for Sony Music, attorney at a law firm representing Atlantic and Elektra Records, and in-house music counsel for a Hollywood Studio. He gratefully acknowledges the assistance of Ryanne Perio and Anjana Puri in the preparation of this material. Ryanne Perio is a graduate of Columbia Law School and a former legal intern at Atlantic Records and SAG-AFTRA. She is currently an associate at Wilmer, Cutler, Pickering, Hale & Dorr, where she focuses on intellectual property litigation. Anjana Puri is a lawyer pending admission to the New York bar. She currently works as an associate of Mr. Gordon. She received her JD from Benjamin N. Cardozo School of Law (2014) and received her B.A. in International Development Studies from UCLA.

Disclaimer: The information in this series has been prepared for informational purposes only and does not constitute legal advice. This series should be used as a guide to understanding the law, not as a substitute for the advice of qualified counsel. You should consult an attorney before making any significant legal decisions.

Frank Sivero Sues Fox Television Studios for $250 Million

By Joseph Perry

On October 21st, Goodfellas actor Frank Sivero filed a $250 million lawsuit against Fox Television Studios, claiming that The Simpsons character, "Louie," is based on him. http://www.hollywoodreporter.com/thr-esq/goodfellas-actor-suing-fox-250-742709

According to The Hollywood Reporter, Sivero alleges that in 1989 he lived next door to The Simpsons writers in Sherman Oaks, California. Id. The complaint alleges that The Simpsons writers knew that Sivero created and developed his "Frankie Carbone" character for Goodfellas, which was based on Sivero's own personality, and soon after, "Louie" debuted on The Simpsons. Id. According to the complaint, "Louie" has appeared more than 15 times on The Simpsons. Id.

Sivero alleges that his "Frankie Carbone" character was misappropriated and his likeness infringed, which violates his publicity rights under California law. Id. Moreover, he argues that he had a meeting with James Brooks' Gracie Films about making a potential Simpsons-based movie with Sivero. Id. However, nothing materialized from this meeting. Finally, Sivero further alleges that Brooks conducted the meeting to study him further for the "Louie" character. Id.

Sivero demands $50 million in actual damages of his likeness, $100 million for improper interference, $50 million in actual damages over the appropriation of his "confidential" idea, $50 million in exemplary damages over the same "confidential" idea, injunctive relief, and attorney fees. Id.

Players Need for Protection or a Piece of the Pie

By Zachary Nastro

The treatment of college athletes by the NCAA has been a contentious topic for fans, students, universities, and now the National Labor Relations Board (NLRB). The NCAA rakes in billions of dollars in revenue, while the athletes are compensated through conditional athletic scholarships. Last March, the NCAA men's basketball Final Four brought in $198.5 million in advertising revenue, which is eclipsed by the $10 billion contract CBS and Turner Sports signed for the broadcasting rights until 2024. http://money.msn.com/top-stocks/post--march-madness-is-the-new-super-bowl. This fiscal oil well is contingent on one crucial factor, the athletes' performance. If the athletes do not perform, the NCAA money machine ceases to exist. In light of this well-known dependent relationship, shouldn't these student athletes be entitled to more than the scholarships that are currently distributed? The Northwestern Wildcats Football program seems to think so. The College Athletes Players Association (CAPA), on behalf of the football players at Northwestern, challenged the athletes' status in an effort to establish their role as employees of the university.

Northwestern football players petitioned the NLRB so that CAPA may represent them in their effort to evince their "employee" status under the National Labor Relations Act (NLRA). The court adopted the common law definition, which defines employee as a person whom under contract and control of an individual performs a service in return for compensation. William B. Gould IV et. al., Full Court Press: Northwestern University, A New Challenge to the NCAA, 35 Loy. L.A. Ent. L. Rev. 1, 30 (2014). The athletes demonstrated how their payment derived from their athletic scholarship awards. Of the 112 members of the Northwestern football team, 85 of them are on scholarship for approximately $61,000 per academic year. Id. Put another way, the university spends over $5 million dollars each year on scholarships. The court noted that these scholarships are awarded after considering the athlete's football abilities and not the individuals' academic performance. Id. This point is furthered by the fact that these players' scholarships can be cancelled if the player fails to perform, suffers injury, engages in any restricted activity, or anything else that may prevent the athlete from participating on the field. Moreover, this exchange of value for service establishes the employer-employee relationship. Id.

Next, the players moved to demonstrate their employment by showing how they are subject to the control of the university. Id at 31. Once the athletes commit to Northwestern's football program, they are immediately exposed to a myriad of rules and regulations. For instance, players must be pre-approved by the athletic department before they can seek outside employment; players must live on campus for their first two years; players are regularly tested for drugs and alcohol; there is a strict dress code players are required to follow; and players are also expected to participate in a certain amount of hours in conditioning and game preparation outside of scheduled practice. Id. On average, players are expected to dedicate 45 hours a week to football related activities. Id. In other words, this "extra-curricular" commitment is equivalent in time to a full time job with overtime. Thus, the requisite level of control to fit the common law definition of "employee" has been established.

The university responded by arguing that the athletes were comparable to graduate assistants as decided in the 2004 Brown University dispute. http://www.aaup.org/brief/northwestern-university-and-college-athletes-players-association-capa-case-no-13-rc-121359. That case held that teaching assistants are not employees, instead are more closely associated with the educational institution. Gould, supra at 32. Therefore, the NLRB made a distinction between graduates who possessed a direct connection with the university and athletes who were subject to the control of non-academic university employers. Id. After considering the facts, the NLRB decided that it is permissible for football players awarded scholarships to be represented by the CAPA and negotiate in collective bargaining with the university. Id. The players could use collective bargaining as a way to improve their schedules, gain outside employment, and eventually argue for additional monetary compensation.

The NLRB's decision now begs the question of whether the ruling was the "right" move. Experts have mixed views on whether allowing scholarship athletes in private universities to unionize will see positive results. With an employee relationship established and scholarships viewed as compensation, how will taxes work for these players? The IRS will certainly hold an interest in the millions of dollars in scholarships distributed to incoming athletes every year. It is also likely that taxation on players' scholarship awards will affect the amount of money school are willing to award players. 21 No. 2 Miss. Emp. L. Letter 1. When considering taxes, the question of whether the players will be entitled to workers compensation is also at issue. Id. Furthermore, Title IX requires equal treatment among male and female athletes. Id. Thus, if Northwestern allows its football players to negotiate for benefits through collective bargaining, then female athletes must be provided the same opportunities at an unknown cost. Id. With all these unanswered questions following the NLRB's decision, the future treatment of college athletes remains uncertain. One resolution to this conflict that has been gaining popularity involves the university instituting a trust fund for athletes that can be procured upon their graduation. The trust fund could comprise of revenue percentages generated by television, radio, licensing contracts, as well as other royalties from advertisements and other forms of compensation that players may have been entitled to otherwise. http://www.usnews.com/debate-club/should-ncaa-athletes-be-paid/ncaa-amateurism-is-an-illusion. This compromise will protect the players and the sanctity of college athletics.

It is apparent that some larger degree of reform within the NCAA will stem out of the NLRB's recent decision. However, this reform needs to be approached prudently, and all potential ripples must be considered to avoid a complete deconstruction of the NCAA. Innovative ideas such as setting up trust funds for the athletes can serve all interested parties and aid in mending the disconnect between the players and their institutions.

March 20, 2015

Week In Review

By Chris Helsel

NY Mets Settle Suit With Ex-Senior VP Fired When Pregnant and Single

The New York Mets (team, club) and former senior vice president for ticket sales Leigh Castergine released a joint statement announcing that the two sides agreed to "resolve" Ms. Castergine's 2014 federal discrimination lawsuit against the team. In her suit, which was filed in the Eastern District of New York, Ms. Castergine accused the club's co-owner and chief operating officer Jeff Wilpon of firing her because he was "morally opposed" to her being pregnant and unmarried.

Ms. Castergine's complaint also alleged that Mr. Wilpon, whose father is the club's principal owner, frequently humiliated her in front of other employees by mockingly pretending to see if she had an engagement ring on her finger. Mr. Wilpon also allegedly told Ms. Castergine's co-workers to refrain from asking her how she was doing ("She's not sick, she's pregnant") and told her that "when she gets a ring she will make more money and get a bigger bonus."

Ms. Castergine contended that upon returning to work after giving birth, she faced harsh criticism and, for the first time, received negative evaluations from her superiors. She said her complaints to Human Resources were ignored, and that Mr. Wilpon offered to allow her to keep her job despite not meeting ticket sales expectations if she would keep quiet about the discrimination claims. According to the complaint, when she refused and told Mr. Wilpon via email that she intended to sue, he responded by firing her three minutes later.

The Mets denied the claims and alleged that Ms. Castergine conflicted with her immediate superior, the club's chief revenue officer Lou DePaoli, and other executives prior to becoming pregnant. The club contended that she was ultimately let go by Mr. DePaoli despite receiving "longstanding support" from Mr. Wilpon.

The two sides avoided trial by agreeing to a settlement this week. Terms of the settlement were not disclosed. In their joint statement, the parties said they "have decided to resolve this matter, which has brought more attention to the workplace environment for women in sports and will result in the organization being more attentive to the important issues raised by women in sports." They added, "Additionally, we are both committed to the further development and encouragement of female executives in our industry."


Extended Cover Art Legal Battle Ends With Settlement In Band's Favor

Heavy metal band Tool, who has not released an album in eight years largely due to multi-layered ongoing litigation, has finally reached a settlement in its favor. The trouble began when the band was sued in 2005 by Cam De Leon, who claimed he owned a copyright on artwork he contributed to one of the band's album covers. Tool had previously purchased liability insurance, but the company refused to underwrite certain legal costs and ended up suing the band as well.

Mr. De Leon claimed that since he was not officially an employee and did not sign a work-for-hire agreement, he owned the copyright to his works. He alleges that he terminated the licenses to the band in June 2005, after which time the band improperly continued to use his art. Mr. De Leon also claimed that Tool members made defamatory statements about him, causing him to lose business with other artists and companies. The federal copyright case was settled following mediation and dismissed in October 2007.

After years of delay, the insurance lawsuit finally reached a California state court this month. The matter was quickly settled, allowing the band to return to the studio once again. Details of the settlement were not disclosed.

Following the settlement, guitarist Adam Jones spoke to Yahoo! Music and described the effect of the lawsuit on the band's creativity and offered hope that it would return to making music soon: "When you try to be ethical and sleep well at night and try to do the right thing, and people around you are not doing the right thing and trying to take advantage of you, it really affects your creativity and your sleep and your relationships with people and everything you do. We would have had an album out a long time ago, we would have been taking more tours. But we've been discouraged and distracted by this major lawsuit, which is the worst thing that's ever happened to us."


French Court Grants Art House Catalog Photographer's Copyright Claim

In a ruling that is sure to make the international art-for-profit community nervous, a French court has ruled that a photographer of furniture for auction house catalogs has a claim for damages for violation of copyright against an online price database arising from its use of his photos alongside sales results.

The defendant in the case is Artnet, a leading database for art, decorative objects and antiques sales. Artnet maintains that the plaintiff, Stéphane Briolant, is the first photographer to ever claim copyright fees from the company on top of the fees received from auction houses for his work. The company argued in court that the photographs were not subject to copyright protection because the photographer had no input into how the photos would be taken, but rather was compelled by the auction houses to shoot the objects a certain way.

After losing in lower court, a higher French court found for Mr. Briolant and awarded him €750,000 for claims relating to 6,758 photographs. Artnet's major competitor, Artprice S.A., was also made to pay a similar amount.

As a result of the ruling, Artner has removed all of Mr. Briolant's photographs from its database. This leads to the obvious concern that if other similar claims arise, consumers could suffer from a lack of price transparency in the absence of a vibrant online price database.


NY Federal Appeals Court Revives Lawsuit Involving Art Allegedly Stolen By Nazis

In 2013, 75-year old Holocaust survivor Leone Meyer brought suit in New York federal court, alleging that she was entitled to a Camille Pissarro painting that was stolen from her father as Nazi troops made their way across France during World War II. Swiss records show that the Danish-French impressionist's 1886 "Shepherdess Bringing in Sheep" was owned by Ms. Meyer's father, but a Swiss court rejected her ownership claim because post-war owners had properly established ownership.

After the war, the painting was purchased by American oil tycoon Aaron Weitzenhoffer from a New York gallery in 1956. Upon his wife's death in 2000, it was bequeathed to the Oklahoma University, which has displayed it publicly ever since.

After losing in Swiss court, Ms. Meyer brought her case to New York federal court, where it was dismissed. However, on appeal, the Second Circuit directed the lower court to consider whether the case should be transferred to Oklahoma. The university has defended its rights to the painting, though in a statement this week said it is "continuing its efforts to work with the plaintiffs to determine all the facts in this matter, some of which may still be unknown, and to seek a mutually agreeable resolution."

However, the school has also maintained that it does not want to set a bad precedent by automatically giving away art works to anyone who claims them. It has opposed the lawsuit on procedural grounds, claiming sovereign immunity and that Ms. Meyer failed to diligently pursue her claim. The school also accused Ms. Meyer of forum shopping by filing suit in New York rather than Oklahoma in order to avoid Oklahoma's more restrictive statue of limitations.


Roger Clemens/Brian McNamee Defamation Suit Settled After Seven Years

This week, attorneys representing former Major League Baseball pitcher Roger Clemens and his former trainer, Brian McNamee, reached a settlement in Mr. McNamee's defamation claim against his former client.

The case stems from the 2007 publication of former Senator George J. Mitchell's report on the widespread use of performance-enhancing drugs in baseball, which included allegations from Mr. McNamee that he had provided human growth hormone to Mr. Clemens and his then-teammate, Andy Pettitte. Mr. Pettitte quickly admitted his guilt and apologized, but Mr. Clemens denied the allegations and repeated his denials under oath before a Congressional Committee. Before that same Committee, Mr. McNamee repeated his assertions and swore that he was personally provided the illicit substance to Mr. Clemens.

Following the two men's contrary testimonies, Mr. Clemens was charged with perjury. He was acquitted in 2012.

Meanwhile, Mr. Clemens filed a defamation suit against Mr. McNamee, which was later dismissed. Mr. McNamee then countersued in Brooklyn federal court, claiming that Mr. Clemens had damaged his reputation by calling him a liar and mentally unstable. That suit settled this week.

Following the settlement, attorneys for Mr. Clemens, who pitched for four teams over 24 seasons and was named the American League Most Valuable Player in 1986, in addition to winning seven Cy Young awards (given to the league's best pitcher), were quick to point out the settlement included no admission of any wrongdoing and that Mr. Clemens would not be contributing any of the money. Instead, the payment will come from Mr. Clemens' homeowners policy with AIG that covers defamation claims. Attorney Rusty Hardin, who represents Mr. Clemens, said this week that it was AIG who decided to settle the case. The insurer, he said, "made a decision about the cost of trying the case and decided it was cheaper to settle."


March 24, 2015

Fordham/EASL Section Sports Law Forum

The Fordham Sports Law Forum, along with the New York State Bar Association-Entertainment, Arts & Sports Law Section, is hosting the 19th Annual Sports Law Symposium on Wednesday, April 1st from 9:15-5:00 in Fordham's new law school building (150 West 62nd Street, New York, NY).

This year, three panels will focus on current policies and practices in sports law, in the areas of taxation, domestic and sexual violence, and the fan's effect on team and league discipline. Attendees will receive 4.5 transitional and nontransitional professional practice credit hours, and can register here: law.fordham.edu/sportslaw. NYSBA-EASL members will receive a substantial discount on the registration cost!

Please email the event chair, Katie Rosenberg (krosenberg4@law.fordham.edu) with any questions. We look forward to seeing you there!

March 27, 2015

Hau5 of Mau5: Deadmau5 and Disney in a Trademark Battle

By James West

The electronic dance music (EDM) artist's attempt to trademark his "Mau5head" sparked a legal battle with Disney in September. Deadmau5 (pronounced "Dead Mouse", a.k.a. Joel Zimmerman) attempted to register his logo, which is a replication of the mouse head mask he wears on stage during his performances. This logo is essentially three circles connected together, forming a head and two ears - similar to the famed Mickey Mouse logo used by the Walt Disney Company. Similar enough, in fact, for the latter to file an opposition to the registration. According to Zimmerman, Disney alleges that the trademark would be confusingly similar to its own Mickey Mouse logo.

Legal Background for Disney's Claim Against Deadmau5

The primary federal statute regulating trademarks is the Lanham Act, which states, in regards to trademark infringement, that any person who uses in commerce any word, term, name, symbol, or device, or any combination thereof which is likely to cause confusion shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such an act. 15 U.S.C.A. § 1125. In a series of tweets on the artists' Twitter page, Zimmerman complains that "Disney thinks [consumers] might confuse an established electronic musician/performer with a cartoon mouse." Zimmerman is oversimplifying here, as consumer confusion, while a factor, is not determinative when deciding if a trademark is confusingly similar to a preexisting trademark. This "likely to cause confusion" standard has been further extrapolated on by the courts. However, there is no bright-line rule. Even Judge Friendly, when establishing a list of factors to be weighed when determining the strength of the prior owner's chance of success when claiming infringement, wrote that the court may still take other variables into account. Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 495. Friendly's factors included the strength of the mark, the degree of similarity between the two marks, and the sophistication of the buyers. Id.

Disney's Likelihood of Success in its Claim Against Deadmau5

While Zimmerman's mark does have its differences from the traditional Mickey Mouse logo, such as a large smile on the face of the mark, ultimately the factors appear to weigh in Disney's favor. Disney's mouse logo is exorbitantly strong. It would not be remiss to say that it is one of, if not the most, recognized and popular symbols in modern culture, and has been so since the 1930s. It appears everywhere, on every type of merchandise available - from toys, to t-shirts, to pancakes, to car decals, to kitchen appliances. The Walt Disney Company is the second largest broadcasting company in the world, and its use of the mouse head logo is international household knowledge.

The marks are somewhat similar. Both contain three circles forming a head, with two ears and a face. However, Deadmau5's logo is distinct in that it has a large, toothy grin spread across the face, with two eyes with "X's" as pupils. Disney's mouse head logo contains either Mickey's face or no features at all. In this element they are distinguishable, however, they may be similar enough to affect the weight of other factors. While there seems to be no evidence of actual confusion, at least there has not been any presented yet, the sophistication of the buyers is a crucial factor to consider. Deadmau5 is by no means a household name, gaining his popularity in the realm of the EDM subculture. It is unlikely that unless someone is involved with the industry, or is a young adult who is aware of the subculture or partakes in it, has heard of Deadmau5. Even less likely is someone able to identify a piece of music created by him. On the other hand, even young children (and their parents) know the distinct Disney logo. There is a possibility that these buyers, not being aware of EDM or Deadmau5, could confuse the logo as being related to Disney in some way. The Deadmau5 logo does bear the distinct three circles that have been closely associated with Disney for so long. A child or parent, two groups likely to buy Disney products, could falsely presume something that bears the Deadmau5 logo is related to Disney in some way. While whatever type of product might bear both logos may be questionable, the possibility nevertheless exists.

In short, the possibility of Zimmerman prevailing is there. Of course, the court may consider other pre-established factors, or even factors that have not previously been considered. The analysis would then, of course, change; possibly even in favor of Zimmerman. However, the sheer strength and popularity of the Disney logo, combined with the similarity of the two products, weighs in favor of Disney.

March 28, 2015

Week In Review

By Chris Helsel

Controversial New Anti-Gay Indiana Law Creates Conundrum for NCAA and Others

On Thursday, Indiana governor Mike Pence signed a bill into law that allows businesses to refuse service to same-sex couples in the name of religious freedom. This creates quite a complicated situation for the National Collegiate Athletic Association (NCAA, association), as well as professional sports leagues, as Indianapolis is a highly attractive host city for major sporting events due to its central location and compact downtown area.

The NCAA, which is headquartered in Indianapolis and is staging the men's basketball Final Four in the city this week, released a statement regarding the new law. Mark Emmert, president of the NCAA, said that the association was "deeply committed to providing an inclusive environment for all our events. We are especially concerned about how this legislation could affect our student-athletes and employees."

Although it is not feasible to relocate this year's Final Four, Mr. Emmert hinted that the association may refuse to stage events in the state in the future. He said that the NCAA will "closely examine the implications of this bill and how it might affect future events as well as our work force."

Indianapolis plays host to the National Football League scouting combine and Big Ten conference football championship game every year, and hosted the Super Bowl and Final Four earlier this decade. It is also scheduled to host the women's Final Four next year and the men's Final Four again in 2021.

Importantly, the law does not require businesses to refuse service to same-sex couples - it merely allows it. Therefore, the NCAA or a professional league could decline to enact its right to refuse service and have no problem staging a major event in the state. However, the leagues will have no power (other than refusing to enter into sponsorship agreements) to protect same-sex couples from discrimination by local businesses while in town for the events. This fact alone may be reason enough for the leagues to steer clear of Indiana in the future.


Supreme Court Hears Arguments in Texas Confederate License Plate Case

On Monday, the U.S. Supreme Court heard oral argument in the case brought by the Sons of Confederate Veterans, who have contested the Texas Department of Motor Vehicles (the board)'s denial of a specialty license plate that would feature the Stars and Bars.

The board initially rejected the specialty plates in 2011, explaining that many people found the flag offensive. In its decision, the board explained that "A significant portion of the public associates the Confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups."

On appeal before the Fifth Circuit in New Orleans, the Sons of Confederate Veterans prevailed. The court held that specialty license plates constituted private speech and that Texas had discriminated against the veterans' heritage group's view that "the Confederate flag is a symbol of sacrifice, independence and Southern heritage."

In its argument before the Supreme Court, Texas asserted that all specialty license plates - of which there are 438 available in Texas - constitute government speech and are therefore immune from First Amendment scrutiny. Justice Ruth Bader Ginsburg questioned this interpretation, noting that one such specialty plate promoted a hamburger chain. "Is it government speech to say 'Mighty Fine Burgers' to advertise a product?" she asked.

Justice Anthony Kennedy focused on the vast amount of plates available, and likened the specialty plates to a public forum, noting that the government may not discriminatorily censor speech based solely on content in a public place.

The court questioned the standard applied by the board in determining which specialty plates were allowed and which were prohibited, with Justice Ginsburg describing the board's criteria as "a nebulous standard." Justice Stephen Breyer said that "I just think you have to have some kind of legitimate reason. It doesn't have to be much. It could be just a little."

The court also pressed the plaintiffs on whether allowing the Confederate plate would require the state to permit others with vulgar language, swastikas, or promoting al Qaeda and jihad. Yes, said the plaintiffs' attorney, R. James George Jr. "I just don't think the government can discriminate on content." To this, Chief Justice John Roberts responded that it could be possible to discriminate against certain language under a fighting words or incitement to violence theory. "Someone driving in Texas with a swastika is, you know, likely to trigger public violence," he said.

Justice Antonin Scalia suggested that perhaps the plaintiffs had an ulterior motive. "You're really arguing for the abolition for Texas specialty plates, aren't you?" he asked. Chief Justice Roberts seemed not to mind this approach, telling Texas solicitor general Scott Keller that an easy solution would be for the state to remove itself from the business of "selling space on ... license plates to begin with."

Justice Anthony Kennedy seemed to disagree, addressing the idea that all specialty plates should be discontinued: "In a way, your argument curtails speech," he said to the plaintiffs. "If you prevail, you are going to prevent a lot of Texans from conveying a message."

Justice Breyer offered perhaps the most sensible solution, suggesting that there were other ways for the Confederate heritage group to express its message: "Put up a bumper sticker."


Federal Court Rejects National Hockey League's Motion to Dismiss Retired Players' Concussion Suit

On Wednesday, Judge Susan Richard Nelson of the District Court of Minnesota rejected the National Hockey League (NHL, league)'s motion to dismiss a suit brought by retired players. The suit alleges that the league concealed the risks of repeated head trauma from players and promoted violence on the ice, in part by condoning fist-fights during games. The judge denied the league's arguments that the players' complaints were barred by the statute of limitations, that their fraud claims should be dismissed for lack of evidence and that jurisdiction was improper.

Instead, the court gave credence to the plaintiffs' argument that the NHL "concealed information about long-term neurodegenerative risks in the face of a duty to disclose."

However, Judge Nelson has yet to rule on the league's argument that the case should be dismissed because the claims are governed by the collective bargaining agreement between the NHL and the players' union. This line of argument has been used by the National Football League (NFL) in similar suits with frequent success.

Regardless, observers note that the judge's refusal to dismiss the case increases pressure on the league to settle the case, rather than risk losing at trial. The NFL settled a similar case in 2013, though that settlement has been challenged and is not yet finalized.


Both Sides Seek Alteration to "Blurred Lines" Verdict

Earlier this month, a jury awarded $7.4 million in damages to the family of Marvin Gaye after it found that Robin Thicke and Pharell Williams had infringed Gaye's copyright with their 2013 hit song, "Blurred Lines." Now, both sides to the dispute have filed documents in court seeking to alter the verdict.

Interestingly, the jury found that only Mr. Thicke and Mr. Williams violated copyright infringement. The verdict absolved Clifford Harris Jr. (aka T.I.), who contributed a rap verse to the song, and the two record companies who released the song from liability. Last week, the Gaye family members filed a motion in California federal court to add Mr. Harris and the labels to the verdict, arguing that "as a matter of law, all members of the distribution chain are liable for infringement." Obviously, adding additional defendants to the verdict would affect the financial responsibility of each liable party.

The Gaye family also filed a motion seeking an injunction that would halt distribution of the song until the two sides agreed on how to handle future royalties and credit.

Following the jury verdict, attorneys for the defendants said publicly that they intended to challenge the award. Last Monday, attorney Howard E. King filed a motion asking for more time to file for declarative relief, "due to the inconsistent jury verdict and complexity of issues arising therefrom."


Man Claims That Canadian Government-Approved Reality Show Defamed Him

Neil Lim of British Columbia has brought suit in Canadian court claiming that "Border Security," a government-approved reality television program, defamed him by accusing him of money laundering and drug use on an episode of the show. Mr. Lim alleges that Force Four Entertainment and the Canadian government wrongfully broadcasted his interaction with Canada Border Service agents in Vancouver, and that he has suffered reputation harm and post-traumatic stress as a result.

According to the complaint, Mr. Lim was singled out by security agents and searched three times before being made to answer questions about personal drug use. He claims he was detained for over an hour, threatened with a urine test, strip-searched and questioned about gang affiliations - and that the entire episode was filmed and broadcast without his consent.

He seeks damages from Queen Elizabeth and the Canadian government for misfeasance of public office, assault, battery, wrongful imprisonment, infliction of mental suffering, civil rights violations and slander. He also seeks damages for libel and invasion of privacy from Force Four Entertainment.


Letter Calls on Science Museums to Cut Ties With Energy-Industry Donors

The Natural History Museum (not to be confused with New York's American Museum of Natural History), a mobile museum that draws attention to "social and political forces that shape nature yet are left out of traditional natural history museums," has crafted a letter calling for museums of science and natural history to "cut all ties" with fossil fuel companies and philanthropists like David H. Koch. The letter, which is signed by dozens of climate scientists and environmental groups, was released Tuesday and asserts that such donations are tainted due to the donors' efforts to contest the role of humans in global climate change.

According to the letter, "When some of the biggest contributors to climate change and funders of misinformation on climate science sponsor exhibitions in museums of science and natural history, they undermine public confidence in the validity of the institutions responsible for transmitting scientific knowledge. This corporate philanthropy comes at too high a cost."

Mr. Koch, who sits on the board of the American Museum of Natural History and Smithsonian National Museum of Natural History and has donated tens of millions of dollars to the institutions, heads Koch Industries, a privately held corporation with subsidiaries in energy and other industries. He and his family have also funded numerous conservative causes, including organizations that deny humans' role in climate change.

Supporters of the effort to eliminate ties with energy companies and conservative donors believe that such donations improperly influence the content that the museums offer.


About March 2015

This page contains all entries posted to The Entertainment, Arts and Sports Law Blog in March 2015. They are listed from oldest to newest.

February 2015 is the previous archive.

April 2015 is the next archive.

Many more can be found on the main index page or by looking through the archives.