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September 4, 2015

Week in Review

By Zak Kurtz

NY Judge Issues Ruling in Patriots Deflategate Case, but National Football League Immediately Appeals and Continues the Drama

It's in. Judge Richard Berman of the U.S. District Court Southern District of New York issued his verdict in the nine month long Deflategae saga that has been lurking over the amazing season the National Football League (NFL) and the Patriots had in 2014. The ruling effectively obliterates New England Patriots Super Bowl-winning quarterback Tom Brady's four-game suspension that had been issued by NFL Commissioner Roger Goodell, and clears Brady to play in the NFL season opener on September 10th.

The judge's 40-page ruling stated that Commissioner Goodell went too far outside the bounds of the Collective Bargaining Agreement (CBA) by issuing such a punishment to Brady. Judge Berman condemned Goodell for "dispensing his own brand of industrial justice." The judge said that a player's right to notice was "at the heart" of the CBA "and, for that matter, of our criminal and civil justice systems.'' Specifically, the court found "... that Brady had no notice that he could receive a four-game suspension for general awareness of ball deflation by others."

The ruling is a clear win for Brady and the National Football League Players Association, and blackens the eye of Goodell and the NFL. However, the ruling will not end this dispute, as the NFL decided to appeal the decision to the Second Circuit Court of Appeals in Manhattan only hours after Berman's decision on Thursday. More importantly, NFL attorney Daniel Nash's motion did not seek an emergency stay. Therefore, Tom Brady would be able to play immediately as the appeals court considers the case, which could take several months as Deflategate continues.

Source: http://www.nydailynews.com/sports/football/deflategate-judge-rules-toss-tom-brady-4-game-ban-article-1.2347193

Sony Altered Concussion Movie to prevent NFL protest

With the decision regarding Tom Brady, Roger Goodell, and Deflategate looming over the NFL's head this week, the last thing the NFL needed was more negative media attention. Yet on Tuesday, Sony Pictures Entertainment decided to release the trailer for a movie named "Concussion," focusing on the death and dementia professional football players have endured from repeated hits to the head, and the NFL's early efforts toward a cover-up.

The trailer showed several scenes depicting lead actor Will Smith portraying Dr. Omalu, who angrily demanded "the truth" from people who appeared to be from the NFL. Dr. Omalu began his work on repeated head trauma in 2002, which has gradually been added to by other scientists to get where we are today. Dr. Omalu's persistence, along with the recent string of concussion related litigations, has made the issue a large area of focus for the game. The NFL has even donated millions of dollars to study the effects and treatment for concussions.

Additionally, the same day as the movie trailer's release, hackers unearthed dozens of emails among Sony studio executives, directors, and representatives of Will Smith, where they discussed altering the script and marketing the film more as a whistle-blower story, rather than a condemnation of football or the NFL. Furthermore, hackers located a July 30, 2014, email from a top Sony lawyer that is said to have taken "most of the bite" out of the film "for legal reasons with the NFL and that it was not a balance issue." Other September 2014 emails discussed an abandoned effort to reach out to the NFL. The NFL and Sony have refused to comment on the movie or its marketing strategy.

Source: http://www.nytimes.com/2015/09/02/sports/football/makers-of-sonys-concussion-film-tried-to-avoid-angering-nfl-emails-show.html

College Conferences Try to Prohibit Athletes Who Have Violent Pasts

In response to the recent conviction of former Baylor football player Sam Ukwuachu, and the many scandals among college sports regarding sexual assaults and athletes with violent backgrounds, some prominent conferences have finally initiated measures to keep players with troubling or violent pasts off the fields.

Earlier this week, Big 12 athletic directors unanimously voted to adopt a bar on incoming transfers who had been disciplined for "serious misconduct" at their previous universities. The Big 12 becomes the second major conference to move to adopt such a transfer ban. In May, the Southeastern Conference become the first to adopt a similar rule. Overall, this reflects a rising awareness of the issue of sexual violence by athletes on campus. With similar sexual and domestic violence events occurring in professional leagues, it is likely that other colleges and leagues will be proactive and adopt similar rules and bans regarding serious prior misconduct by athletes.

Source: http://www.currenthr.com/college-conferences-try-to-block-athletes-who-have-violent-pasts/

SoundCloud Sued for Copyright Infringement by British Music Agency

Internet music streaming service king SoundCloud recently was sued in Britain by British agency PRS, the latter of whom represents more than 100,000 songwriters and producers. The lawsuit alleges that SoundCloud is guilty of copyright infringement and claims that the streaming service did not obtain licenses or pay royalties for the use of songs on its website.

SoundCloud has previously clashed with others in the music industry and been sued for copyright infringement. The streaming service has been embraced by musicians and fans for its ability to upload and share music easily and rapidly, but has run into problems with record labels and agencies about rights issues. Warner Music and Merlin have signed licensing deals with SoundCloud, but the two largest labels, Sony and Universal, have not.

PRS said that it had been in discussion with SoundCloud for more than five years about the service, but that the latter claimed to be protected by the "Safe Harbor" provisions that applied to Internet Service Providers who host third party content.

Source: http://www.nytimes.com/2015/08/28/business/media/soundcloud-sued-for-copyright-infringement-by-prs-for-music.html

Stipends, Scholarships, and Fines for College Football Players? Fines? Wait... Fines?

As the college football season officially kicked off yesterday, the NCAA's new approach to stipends and scholarship did as well. This year marks the first that so-called college "student-athletes" can be paid stipends worth as much as several thousand dollars per year. However, after recent comments by several top NCAA coaches, the rules regarding paying these "student-athletes" is unclear.

In January, representatives from 65 colleges in major conferences assembled and created a new governing structure that allowed them the independence to give stipends and make other changes. At this meeting it was decided that universities would be allowed to offer athletes extra funds as part of their financial aid agreements to make up the difference between the value of their scholarships and the full cost of attendance.

Although this was great news to current and future college athletes, the give and take of these funds has already caused confusion. Longstanding Virginia Tech defensive coordinator Bud Foster and Cincinnati Coach Tommy Tuberville have recently suggested that they would fine players and take away portions of cost-of-attendance stipends for behavioral reasons.

The two prominent coaches were instantly met with criticism and told that doing so would almost certainly violate NCAA rules. Specifically, a long-standing NCAA rule states that an athlete's financial aid may not be reduced or canceled for any "athletics reason," including "ability, performance, or contribution to a team's success." Therefore, now that cost of attendance is part of the financial aid package for students (on the 65 college teams that have chosen to adopt it, including Virginia Tech and Cincinnati) withholding any part of it would appear to violate the NCAA rule.

Source: http://www.nytimes.com/2015/08/28/sports/ncaafootball/fines-for-college-football-players-not-so-fast.html

September 11, 2015

Week in Review



By Zak Kurtz

Isn't It Time We Treat National Football League Cheerleaders Like Employees?

On Wednesday, legislators from eight states sent a letter to National Football League (NFL) Commissioner Roger Goodell, asking him to classify cheerleaders as employees and not independent contractors, so that the women could obtain minimum wage and other employee specific benefits. This action continues the onward battle by NFL cheerleaders to be recognized by the NFL and teams.

Over the past year, cheerleaders from the Oakland Raiders, Tampa Bay Buccaneers, New York Jets, Buffalo Bills and Cincinnati Bengals have filed lawsuits alleging minimum wage violations against their respective teams. The main allegations claim that cheerleaders are underpaid, have no job security, and are subject to unfair fines and other acts of intolerant treatment. The Oakland Raiderettes lawsuit led California policymakers to pass a law in July that classifies cheerleaders for professional teams as employees.

In the letter addressed to Goodell, legislators from New York, New Jersey, California, Texas, Illinois, Maryland, Ohio, and Pennsylvania are asking for him to take immediate action by making NFL cheerleaders classified as employees league-wide. The lawmakers believe that cheerleaders should not be forced to approach this on a state by state basis. The NFL currently allows teams to treat cheerleaders as independent contractors and does not mandate an employee relationship. Goodell could require the teams to treat cheerleaders as employees now, instead of waiting for each individual state to create a law for this situation.

The letter has 19 signatures on it, including New York Assemblywomen Nily Rozic and New York State Senator Diane Savino. Rozic and Savino also introduced bills in New York that were similar to the one that was passed in California.

http://www.motherjones.com/mojo/2015/09/nfl-lawmakers-roger-goodell-cheerleaders-minimum-wage

Aretha Franklin Film Pulled From Toronto Film Festival

The Aretha Franklin documentary titled "Amazing Grace" was withdrawn by its producers from the Toronto International Film Festival this week due to a lawsuit filed by the singer to prevent its release.

Only last week, a screening of the film scheduled for viewing at Telluride Film Festival in Colorado was halted because of a ruling by a federal judge in Denver. Franklin filed a lawsuit requesting an injunction to prevent the film's release. The lawsuit claimed that footage used in the film that was shot by Sydney Pollack in 1972 could only be used for commercial purposes with Franklin's consent, which had not been granted. Jon D. Cantor, an attorney for Franklin, stated that the screening at the Chicago Film Festival in October has also been cancelled while this legal battle plays out.

http://variety.com/2015/film/news/amazing-grace-toronto-film-festival-screening-canceled-aretha-franklin-1201587897/

Sotheby's Wins Right to Auction A. Alfred Taubman's $500 Million Art Trove

On Thursday, famed auction house Sotheby's announced that it had won the right to sell the estate of A. Alfred Taubman. Sotheby's beat out its competitor, Christie's, after a heated battle for consignment between the two that lasted over several months.

The Taubman estate includes a large and varied art collection with over 500 pieces in all, including furniture. Many of the works were created by coveted names like Mark Rothko, Amedeo Modigliani and Raphael. Several of the most expensive pieces, such as Willem de Kooning's "Untitled XXI" from 1976, with an estimate of $25 million to $35 million, have never been publicly auctioned. The auction house estimated that the sales, planned for November and January, would bring in more than $500 million. Experts believe that the Taubman trove could be one of the most valuable private art collections ever brought to auction.

As part of the deal negotiated by Sotheby's, the Taubman estate collection is fully guaranteed, which exemplifies just how far the auction house went to out-negotiate its rival. The company would not reveal the minimum amount that had been guaranteed for the collection.

http://www.nytimes.com/2015/09/04/arts/design/sothebys-to-auction-a-alfred-taubmans-500-million-trove.html?_r=0

Deflategate Class Offered at University of New Hampshire School of Law

Sports Illustrated writer and National Basketball Association TV legal analyst Michael McCann will teach a course simply called "Deflategate" at the University of New Hampshire School of Law this fall. The course has a roster of 75 students and had its first class this week. Judge Berman's decision in the Deflategate case could not have come at a better time for McCann and the start of this class, the first of which included those enrolled and local and national media outlets. McCann stated that this is an intensive course that teaches students about the core foundations of law and journalism and then asks them to apply what they have learned to Deflategate.

The course description: "This course is not about deflated footballs. Instead, it is about the interplay between those footballs -- along with numerous other sports things -- and the legal, regulatory and journalistic systems governing sports. Students in Deflategate learn about crucial areas of law that relate to sports and the methodologies used to practice in relevant fields. Students also gain valuable instruction on core journalism methods and their applications to a sports story attracting national headlines. The course concludes with an application of methodologies in law and journalism to Deflategate."

http://courses.unh.edu/class/201510/16974">href="http://courses.unh.edu/class/201510/16974 and https://www.washingtonpost.com/news/early-lead/wp/2015/05/08/university-of-new-hampshire-law-school-to-offer-deflategate-class/">courses.unh.edu/class/201510/16974

https://www.washingtonpost.com/news/early-lead/wp/2015/05/08/university-of-new-hampshire-law-school-to-offer-deflategate-class/

Film Academy Surprisingly Loses to GoDaddy in Oscars Cybersquatting Battle

In a cybersquatting case that lasted more than five years, the Academy of Motion Picture Arts and Sciences (AMPAS, the Film Academy) has suffered a landmark loss to GoDaddy. On Thursday, U.S. District Court Judge Andre Birotte Jr. ruled for GoDaddy, and declared that the Film Academy did not have proof that GoDaddy had bad faith intent to traffic in trademarks like the "Academy Awards" and "Oscars." AMPAS was thought to be the favorite in the case, with disclosures of its various settlement offers (http://www.hollywoodreporter.com/thr-esq/film-academy-blasts-godaddy-revealing-767681), including $20 million at the outset and $6 million as recently as 2013. Prior to Thursday's ruling, AMPAS was hoping to win more than $30 million, but will now be taking away nothing.

The original lawsuit filed in 2010 against GoDaddy alleged that the giant allowed customers to buy domain names like 2011Oscars.com or betacademyawards.com, "park" those pages and collect a portion of revenue from GoDaddy's advertising partners on a pay-per-click basis. On summary judgment at an earlier stage in the case, the Film Academy prevailed in showing that all but 57 of 293 domains at issue were confusingly similar to its own trademarks. Another trial was held in early August, and GoDaddy threw up a hail mary and relied on its last defense, that there was no bad faith intent to profit, which prevailed.

In a 129-page decision, Judge Birotte states that "the unique circumstances compel a finding that GoDaddy did not possess the requisite bad faith intent to profit from the AMPAS Marks." The court also makes note of the nominative fair use of trademarks, noting how newspapers are filled with ads for "Academy Award Nominated" films.

http://www.hollywoodreporter.com/thr-esq/film-academy-loses-godaddy-oscars-821998

September 18, 2015

The 11 Contracts Every Artist, Songwriter and Producer Should Know -- Music and the Movies


By Steve Gordon and Robert Seigel

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

Robert L. Seigel, Esq. (rlsentlaw@aol.com, www.rlsentlaw.com) has more than twenty years experience in the counseling and representation of producers, writers, directors, distribution companies and foreign sales agents concerning development, production, marketing, distribution and exploitation of fiction and non-fiction film, television, publishing and new media projects. His clients' projects have appeared theatrically and on network, syndicated, public and cable television and have earned Academy Award and Emmy nominations and awards as well as prizes at major film festivals.

The authors gratefully acknowledge the assistance of Ryanne Perio, Esq. in the preparation of this article. Ryanne is an associate at Manatt, Phelps & Phillips, LLP where she focuses on intellectual property litigation. They would also like to thank Clémence Barbet-Gros, a graduate law student at Lyon University, France, and Sonia Hanson, a recent graduate of the University of Minnesota Law School.

The sixth installment of this 11-part series on basic music industry agreements focuses on music and the movies. We will discuss two different forms of agreement: composer deals for the creation of music to be used throughout a movie, and an agreement for the recording and licensing of a previously written but unreleased single song for a film. If you are a filmmaker seeking previously recorded and commercially released music, you may be interested in reading Part II of Steve Gordon's book The Future of the Music Business, which includes a comprehensive discussion on how to clear music for movies. Producers should be aware of at least one fact: licensing popular prerecorded music can be very expensive. For instance, one of the authors of this article recently received a quote of $50,000 for a Tom Petty song for a feature film, even though the movie was a low budget Dutch language production with extremely limited commercial potential. This quote was just for the song, or underlying musical composition (see the last installment in this series, Now You Know Everything about Music Publishing, for a discussion of the difference between musical works and sound recordings.) The client would have had to pay another $50,000 to use Petty's recording. This article is aimed at benefiting musicians who have been offered the opportunity to write new music for a film. But for filmmakers who read this article, know that hiring a composer to create music for your movie can save you a great deal of money.

COMPOSER AGREEMENTS

The key terms of a contract between a film producer and a composer are: (i) Whether the composer will be responsible for recording as well as writing the music; (ii) the fee payable to the composer; (iii) the time schedule for the delivery of the music; (iv) the composer's credit; (v) how a composer would be compensated if there is a soundtrack album; and importantly, (vi) the permitted use and ownership of the music itself.

Fees

In a conventional composer agreement, the composer is responsible for producing or supervising the production of the music as well as composing it. The composer is paid a fee for those services, and the filmmaker sometimes pays for costs associated with rendering those services, including studio time, compensation to engineers, mixers, arrangers and the rental of recording equipment. Alternatively, these costs may be built into the composer's fee. (See the discussion of the Package Deal below.) The composer's fee is generally paid in installments. Part of the fee may be payable upon the signing of the agreement or the commencement of "spotting" - i.e., when the production team and the composer screen the movie to determine where and what type of music should be used in the movie's score. Another portion of the fee may be payable upon the commencement of the recording of the score. A third installment of the fee may be payable upon completion of all services, including delivery of the master recording in a format specified in the contract, and the producer's acceptance (see below) of the master recording.

The Package Deal

With low budget movies, a producer and a composer often enter into a "package deal." The producer pays the composer a fee designed to compensate the composer, as well as cover costs associated with the recording of the score. The composer assumes responsibility for payments to musicians, arrangers, studio time, and instrument rentals, and retains any monies remaining after he or she pays these costs. However, if the composer incurs expenses in excess of the package fee deal, the composer assumes such costs.

There are, however, usually certain excluded costs in the "package deal", which the producer assumes. These costs include the licensing of any music not written by the composer, or if the producer hires another composer to re-write the score, and any re-scoring or re-recording costs required solely for creative reasons. The composer should try to limit the right of the producer to demand changes after delivery and to negotiate a "kill fee" in case the producer is dissatisfied with the score. (See Producer's Acceptance below and Paragraph 2(b) of the second contract analyzed in this blog.) Package deals often work well when a composer is using few instruments and relies on synthesizers and his or her own equipment and recording facilities.

Work for Hire vs. Exclusive License

A key provision in any composer agreement is the section that addresses the ownership rights in the music. In a typical composer agreement, the producer and the composer agree in a signed writing that the music created and recorded by the composer is deemed to be a "work for hire", and that the producer owns all rights in such, including both the underlying music and the recording. This provision also states that, if for any reason the music created and recorded by the composer is not deemed a "work for hire" under federal copyright law, the parties agree that the composer has transferred all rights in and to the music, as well as the recordings of the music, to the producer.

A work for hire contract gives the producer total control of the music and the recordings. The producer can use or modify the music in any manner, and include the music in the trailers, marketing materials, advertisements and any other form of promotion for the movie. In addition, the producer can act as a music publisher and label by licensing the music and the recordings to any third parties, whether or not such third parties have any connection to the movie. For instance, the producer could license the music and/or the recordings to a person or entity that may want to use it in a commercial or advertising campaign. Although the composer has no say in how the music is used and will not share in the income from licensing of the music to third parties, the composer may be entitled to compensation from at least one income stream, i.e., public performance.

A writer subject to a work for hire agreement usually gets paid for the public performance right. As discussed in previously in this series, the publisher's and songwriter's shares are generally divided on a 50/50 basis. Although the filmmaker receives the publisher's share for the music license, the composer retains the songwriter's share regardless, of who owns the rights in and to the music. In the U.S., there is no public performance income from performances of the movie in a theater, and there is no performance income from distribution of DVDs or permanent downloads. However, there are public performance royalties from broadcasting the movie on television and from Internet video on demand (VOD, e.g., Netflix). The composer should be very careful, however, that proper cue sheets are prepared and presented to his or her performance rights organization (PRO) to ensure that he or she will be credited by the PRO. As discussed in "A Simple Guide to Signing the Best Sync Deal Possible" in this series, a cue sheet is a log of all the music used in a production. (See http://www.bmi.com/creators/detail/what_is_a_cue_sheet, for an example.) Cue sheets are the primary means by which performing rights organizations track the use of music in films and TV. The composer will not be compensated by the PRO without first filing the cue sheet.

Work for hire agreements are standard and usually non-negotiable when a major studio engages composers, but majors generally pay significant fees. A composer who is approached by an independent producer whose offer is more financially modest may be able to retain the rights in his or music, or at least share in additional income streams aside from the writer's share of public performance royalties. In addition, if a producer cannot afford to pay a composer his or her customary fee, the composer may agree to a reduced fee, provided that the composer is permitted to share in the publishing rights (the underlying musical composition). For example, if the composer's music from the movie is licensed, the composer could negotiate to receive the full 50% (songwriter's fee) and perhaps one-half of the publisher's share, or 25%. In this scenario, the producer would retain the remaining 1/2 of the publisher's share (i.e, 25%).

Since producers are generally not music publishers, and may not have an interest in engaging music publishers to exploit the music rights on their behalves, a producer may offer a reduced fee to a composer and permit the composer to retain the publishing rights. In this scenario, the composer usually grants an exclusive license for use of the music in the movie as well as in any trailers, advertisements or other promotional materials for or related to the movie, but retains the copyright in his or her music and recordings, and the right to use them in other projects. In this case, the producer may also negotiate to secure the right to create and distribute a soundtrack album in connection with the movie. The composer agreement can go into extensive detail in calculating how a composer will be compensated for the use of his or her music and recorded performances on the soundtrack album, or the parties can agree to negotiate such terms in good faith at a later time if and when the possibility of a soundtrack album is more certain, such as when a distributor agrees to commercially release the movie.

If the producer agrees that the composer will retain rights in his or her music and recordings, the producer will usually require the composer to agree that he or she cannot use or cause others to use the music in any other movie, television program or other audio-visual project for a certain period of time, except with the producer's prior written consent. This period may be several years, either from the date of the initial commercial release of the movie, or from the signing of the composer agreement. After the agreed-upon period, the composer can place the music in any other movie, television program or audio-visual project, such as a video game.

The composer's agreement may also have a provision in which there is a limit to the amount of the movie's music that may be used in an album. This is to prevent an album containing the composer's music from becoming potentially competitive with the movie's soundtrack album, thereby undercutting the marketability and value of the actual soundtrack album. If a composer creates his or her own album and uses any portion of the movie's music, there will generally also be a requirement to credit the movie as the source of the music.

Producer's Acceptance

Prior to accepting the final score, the producer usually will retain the right to request certain changes, omissions or additions to the movie's music. In addition, the producer generally has the right to not use the composer's score in the final version of the movie provided that the composer has been fully compensated for creating and/or recording the score. This is known as a "play or pay" clause, and it is used in a wide variety of different forms of entertainment business agreements such an agreement for an actor's services. Play or pay provisions are usually non-negotiable because (i) they are inherently fair because they pre-suppose that the producer has paid one hundred percent of composer's fee, and (ii) it is overreaching to demand that the producer use the composer's score if the producer does not think it works for the movie.

To increase the likelihood that a composer and producer are on the same page regarding the movie's music, the two can agree that the composer will provide scoring and recording services for a portion of the score, at which point the producer can decide whether or not to continue to work with the composer on the remainder of the score. If the producer chooses to terminate the relationship, the composer would receive some agreed upon "kill fee," but the producer will generally retain the right to use the composer's music and recordings rendered during the trial period.

Credit

Composers should negotiate their credits carefully, because a good credit can be vital to getting higher fees for future work. A composer may request "single card" credit in the main credit sequence of the movie, whether the main credit sequence is at the beginning or the end of the movie. This means that his or her name and credit is the only one to appear on screen at a given time. The producer will usually only promise to provide a credit if it actually uses the music in the movie.

SINGLE SONG AGREEMENTS

Acquiring music for movies can take all kinds of forms. The last agreement that we analyze in this piece is for a single song that was previously written but unreleased. The filmmaker wanted the composer, who was also a record producer, to record the song so that he could put the recording in a music video that would be shown with the end credits. As the producer and composer both knew that the producer wanted to use the composer's pre-existing song, the composer had a great deal of leverage. As a consequence, the composer was able to negotiate a license rather than a work for hire. You could imagine a situation where the filmmaker wanted the composer to create and record an entirely original song. In that case the contract would look more like a work for hire.

THE CONTRACTS

The first contract analyzed below is a standard pro-film producer form of agreement. It makes all the music a composer creates and records a work for hire for the filmmaker. It also gives the filmmaker the right to demand that the composer make an unlimited number of changes and revisions in the music without obligating the film producer to pay any additional compensation to the composer.
The second agreement is much more composer-friendly. It is not a work for hire agreement. Instead, the composer merely grants the filmmaker the right to use the music in his movie and retains all other rights, except that the composer agrees not to license the music for another full length film for a period of time. In addition, the second contract limits the time that the filmmaker can make the composer make changes to two days after the composer delivers the final mix. It also provides for a "kill fee" if the filmmaker decides that the music delivered by the composer is unacceptable.
The last agreement is for the recording of a single song that the composer previously wrote but never recorded. Similar to the second agreement, the composer grants a non-exclusive license to the filmmaker and retains all other rights in the song and the recording. In this case, though, the composer also grants the filmmaker the right to use the recording in a promo video for the movie.

*******************************************************************************************************************************

FIRST AGREEMENT
[PRODUCTION COMPANY NAME] [PRODUCTION COMPANY ADDRESS] Dated as of August ___, 2015 [NAME OF COMPOSER] [COMPOSER ADDRESS]


Re: "[TITLE OF FILM]"/Composer Agreement

Dear ____________:

This letter, when executed by you and [PRODUCTION COMPANY NAME] (referred to as "Company" or "us"), will set forth the material terms of the agreement between you and us relating to your creation and delivery to us of musical score for the motion picture tentatively titled "[TITLE OF PICTURE]" (the "Picture").

All of Company's obligations herein are expressly conditioned upon Company's receipt of fully executed copies of this Agreement and the Certificate of Authorship attached hereto and incorporated herein.

1. Services. You will compose, conduct, perform, record, arrange, produce, and mix the score (hereinafter, the "Compositions" or the "Score") for the Picture in accordance with the schedule set forth below. Company hereby engages the services of Composer to write, compose, arrange, adapt, interpolate, orchestrate and conduct the recording of the Score for the Picture and to supervise the music editing, dubbing and so-called "sweetening" of the recording of the entire Score and to deliver a fully recorded and edited digital audio file or DAT or such form as Company requires for all original and duplicate master recordings embodying the Score (the "Master" or the "Masters") all for and as directed by Company. The Master shall be suitable for synchronization with the Picture and with audio-visual discs, cassettes and other audio-visual devices embodying the Picture or substantially all of the Picture ("AV devices") and, upon Company's request, for manufacture of audio products embodying the Score, upon and subject to the terms and conditions herein set forth. Without limiting the generality of the foregoing, but subject to the specific terms of this Agreement, Composer shall perform all services or duties customarily performed in the motion picture industry by a composer, scorer, conductor, arranger and adapter with respect to the Picture. Company shall have the right to require Composer to make such reasonable changes, modifications or additions to the Score, and to any and all musical compositions, production numbers, or special material composed by Composer hereunder as may be reasonably required by Company.

In this agreement, the composer is not only responsible for writing the score, he or she must deliver the recording of the music.

2. Term of Engagement: The term of Composer's engagement ("Term") hereof shall commence upon the date set forth above and shall continue until complete and satisfactory delivery of the Score. Composer shall deliver the Master in accordance with a schedule to be provided by Company and, subject to the terms herein, perform any re-writes, if any, requested by Company until a Score commercially and technically satisfactory to Company shall have been delivered.

This provision is very favorable to the filmmaker. It would allow him or her to order the composer to make an unlimited number of changes. An alternative is to limit the filmmaker to demand the composer make one round of changes with a payment schedule for additional changes. Further, see the next contract and the comments for Paragraph 3 for another alternative for the composer.

3. Compensation. In full and complete consideration for Composer's full and faithful performance of all services hereunder and for all rights granted to Company hereunder (including, without limitation, all right, title and interest in and to the results and proceeds of Composer's services rendered hereunder), provided Composer is not in material breach hereof and subject to Company's rights of suspension and/or termination in the event of force majeure, disability or default, Composer shall be entitled to be paid an "all-in" fee of ___________ Thousand Dollars ($___,000), payable in the following manner: (i) _______________ Thousand Dollars ($__, 000) upon signature of this Agreement by Composer and commencement of Composer's services; and (ii) ______________ Thousand Dollars ($___, 000) promptly following the satisfactory delivery of the Score as set forth herein.(Notwithstanding the foregoing, no synchronization fees, royalties or other consideration (excluding only mechanical royalties and any public performance fees, if applicable) shall be payable to Composer for the use of the Score, Master or the Compositions (collectively the "Work"), or any part thereof in the Picture or in connection with any advertising, publicizing or exploitation thereof, regardless of the method, media or types of devices utilized for the exhibition or exploitation thereof.

As confirmed in the next paragraph, this agreement is "all-in" meaning (i) the composer is responsible for any expenses such as studio time and musicians' fees; and (ii) the composer will make no more money than the fees in Paragraph 4 except for the "writer's share" of public performance royalties and use of some excerpts of the score in an album.

4. Recording Costs. You will be responsible for all recording costs incurred in connection with the Score and your services hereunder. You agree that you will be solely responsible for, and warrant that you pay, all such recording costs, even in the event such costs exceed the compensation payable to you pursuant to paragraph 4 above.

The composer must be careful not to accept a fee that is not adequate to compensate him or her for his or her time, plus paying for recording costs.

5. Ownership. Subject to the terms and conditions hereof, you hereby acknowledge and confirm that we shall own all right, title and interest in and to the Compositions of the Score (including, without limitation, the worldwide copyrights therein including any extensions and/or renewals thereof) and your performances thereon, throughout the universe and in perpetuity, and that we shall have the right to secure registration of copyright in the Score and the Masters (i.e., the individual master recordings comprising said Score) and the individual compositions comprising the Score (the "Compositions") and your performances thereon in our name, pursuant to the United States copyright laws, as "work made for hire." We shall have the exclusive right, insofar as you are concerned, to use and to authorize others to use the Score and any and all portions thereof throughout the world or any part thereof in any manner we see fit, and to refrain from any or all of the foregoing. If for any reason the results and proceeds of your services hereunder are not deemed to be a work made for hire, you shall and hereby do assign such results and proceeds and all rights therein and thereto to us, for use in any and all media (whether now known or hereafter devised), throughout the world, irrevocably and in perpetuity. The payments made by Company or its assignees under this Agreement are deemed to include sufficient remuneration for all so-called rental and lending rights pursuant to any directive, enabling or implementing legislation, laws and regulations enacted by any nation throughout the world, including the member nations of the European Union. You hereby waive all rights of "Droit Moral" or "Moral Rights of Authors" or any similar rights or principles of law which you may now or later have in the Work.

This is the "work for hire" clause that was discussed in the Introduction. If the composer cannot get a license deal instead, in which he or she gets to keep his or her copyright in the music, the composer can at least try to get more money for giving up his or her rights in the music.

6. Credit. Provided you fulfill your material obligations hereunder and further provided that the majority of the total background musical score embodied in the Picture as released in the United States consists of the Score, we will accord you the following credit: "Original Music by [NAME OF COMPOSER]." The foregoing credit shall appear in the main credit roll in the Movie. All other aspects of such credit, including size and placement, shall be determined by Licensee.

Credit is often a highly negotiated provision. In this agreement however, the obligation to provide any credit at all only applies if the "total background music" in the movie consists of the score. If another composer is brought in to contribute even incidental passages of music, the filmmaker is not obligated to credit the composer. Composers should seek a credit provision more like the one in Paragraph 12 of the next agreement.

7. Soundtrack Album.

(a) Should Company enter into an agreement with a record distributor ("Distributor") for the exploitation of the soundtrack album ("Soundtrack Album"), if any, and should the Soundtrack Album or any audio product embody any of the Score as performed by and/or conducted by Composer and/or the Compositions, then Company shall negotiate in good faith with Composer for a royalty with respect to such audio products manufactured and sold hereunder. Any "Artist's royalty" (as such term is customarily known in the music industry) payable to Composer for use of Composer's recorded performance of any composition on the soundtrack album for the Picture shall be computed, reduced and determined in a no less favorable manner as Company's basic royalty under its agreement with any recording company.

As indicated in the Introduction, instead of the composer agreement going into extensive detail in calculating how a composer shall be compensated for the use of his or her music and recorded performances on the soundtrack album, the parties agree to negotiate such terms in good faith at a later time if and when the possibility of a soundtrack album is more certain, such as when a distributor agrees to commercially release the movie.

(b) The parties acknowledge and agree that Composer shall have the right to include selections from the Score on any record album featuring Composer's solo work (with Company's prior written approval which shall not be unreasonably withheld by Company) provided that the following credit be placed by any of such composition's title: "Music from the motion picture feature [TITLE OF PICTURE]."

Although this is generally a pro-producer form, this provision is a big concession to the composer because, under a work for hire agreement, the composer generally has no rights in the music after delivering it to the producer.

8. Publishing. You acknowledge that we will be the sole owner of all right, title and interest to the Compositions, including (a) the worldwide copyrights therein and any renewals or extensions thereof, and (b) the sole, exclusive, perpetual worldwide rights of administration, exploitation and promotion associated therewith. Nothing in this agreement shall limit Composer's right to receive Composer's performing rights income derived from the exploitation of the Score, whether in whole or in part. Composer shall be entitled to receive the "writer's" share in and to the Compositions.

As discussed in the Introduction, this is the one form of income, aside from the inclusion of some of the music in a composer's own album, that the composer is entitled to under a work for hire agreement.

9. Use of Name, Likeness, Etc.: Company may use, and permit others to use, Composer's name, likeness, voice and biographical material in and in connection with the Picture, the Work, any project or product derived from the Picture, if any, and the sale, distribution, promotion and advertising thereof. Company and its assignees shall have the sole and exclusive right to issue publicity concerning the Picture and concerning Composer's services with respect thereto except for Composer's own publicity provided that there shall be no derogatory statements or references concerning the Picture or any party or entity associated with the Picture.

10. Music Cue Sheets: The music cue sheets for the Picture shall be filed with the proper performance rights societies by Company accurately reflecting Composer's ownership of all Compositions. The cue sheets shall be prepared in consultation with Composer, and Company shall promptly provide Composer with a copy upon its availability. Company will be responsible for submitting cue sheets to distributors (including non-US) and to broadcasters.

The composer should make sure the producer complies with this provision and files a proper cue sheet before the release of the movie on television or on Internet VOD.

11. No Obligation to Exploit: Company or its assigns shall not be obligated or required to print, publish, promote or otherwise exploit the Work or the Picture, or any part of them, in any manner or to exercise any of the rights granted to Company or its assigns hereunder.

12. Notices: All notices which either party is required or may desire to serve hereunder shall be in writing and shall be served to the addresses specified herein. A courtesy copy of such notices shall be sent to: ____________, Esq., ______________________; Tel: (_____) _____-______; E-Mail:_______________.

13. Federal Communications Act: Reference is made to Section 507 of the Federal Communications Act which makes it a criminal offense for any person in connection with the production or preparation of a picture or program intended for broadcasting to accept or pay, or agree to accept or pay, money, service or other valuable consideration for the inclusion of any matter or thing as a part of such picture or program, without disclosing the same to Company thereof prior to the telecast of such picture or program. Composer warrants and agrees that Composer has not and will not accept or pay any money, service, or other valuable consideration for the inclusion of any plug, reference, product identification, or other matter in any material prepared or performed by Composer hereunder.

14. Independent Contractor: Composer warrants that he or she is an independent contractor and is not an employee of Company. As an independent contractor, Composer is responsible and liable for any income tax, unemployment insurance, FICA (Social Security), or any other payment normally associated with an employee relationship.

15. Assignment: Company shall have the right to assign this Agreement at any time to any person or entity. Neither this Agreement nor any rights hereunder are assignable by Composer at any time to any person or entity. This Agreement inures to the benefit of Company's successors, assigns, licensees, grantees, and associated, affiliated and subsidiary companies.

16. Additional Covenants of Composer: Composer agrees that Composer shall:

(a) Not disclose to any party information relating to the subject matter of this Agreement or to the activities of Company with respect to the Picture or otherwise except: (i) to Composer's financial and legal advisors; and (ii) regarding any incidental and non-derogatory references by Composer to third parties concerning Composer's Score in connection with the Picture.

(b) Not incur any liability or expense on Company's account without Company's prior written approval (except as otherwise stated herein), and if such approval is given, Composer will provide Company with any information necessary to satisfy such obligation, including copies of any necessary agreements.

17. Governing Law; Dispute Resolution: This Agreement will in all respects be governed by and interpreted, construed and enforced in accordance with the laws of the State of New York. Any dispute or controversy arising under this Agreement (including, without limitation, the validity and enforce ability of this Agreement) shall be subject to arbitration in the State of New York in accordance with the Rules of the American Arbitration Association as decided by One (1) arbiter mutually approved by the parties and whose decision shall be binding, final and non-appealable and may be entered in a court of competent jurisdiction. The prevailing party shall be entitled to reasonable outside attorneys' fees and costs. For the purpose of enforcing such arbitrator's decision, any action arising out of or relating to this Agreement and its enforcement will have jurisdiction and venue in a state or federal court situated within the State of New York, and the parties consent and submit themselves to the personal jurisdiction of said courts for all such purposes.

18. Remedies: The parties acknowledge and agree that Composer's remedy for any breach of a term of this Agreement by Company shall be limited to monetary damages at law. Composer shall not have the right to rescind this Agreement or to any equitable or injunctive relief or otherwise in which there would be an interference or prevention of Company's right to finance, produce, market, distribute or otherwise exploit any and all rights in and to the Picture.

19. DVD/Blu-Ray and Soundtrack Album: Provided that Composer has rendered services as stated herein and Composer is not in breach of any material term stated herein, Company shall provide Composer with one (1) DVD or Blu-Ray copy and (1) soundtrack album CD (if and when available) of the Picture in its completed form which shall be used by Composer solely for private, non-commercial or resume reel use.

20. Entire Agreement; Modifications: This instrument constitutes the entire agreement of the parties hereto relating to the subject matter specified herein. This Agreement can be modified or terminated only by a written instrument executed by both Composer and Company or Company's successors and assigns. The parties acknowledge and agree that signatures may be by hand, facsimile, electronic or optically scanned (e.g., pdf) and any of these methods shall be deemed as binding on the parties.

21. Miscellaneous. You warrant and represent that neither the Score, the Masters or the Compositions shall infringe the rights of any third party, and that you are not under any disability, restriction or prohibition, whether contractual or otherwise, with respect to the performance of your services hereunder. Without limiting the foregoing, you specifically warrant and represent that (a) you have the full right, power, and authority to enter into this agreement, (b) you have obtained all requisite rights, clearances and permission to enter into this agreement from all applicable third parties, including, without limitation, [record company], [publishing company], and each of their respective affiliates, and (c) we shall not be required to make any payments of any nature for, or in connection with, the rendition of your services or the acquisition, exercise or exploitation of rights by us pursuant to this agreement, except as specifically provided herein (it being understood, for the avoidance of doubt, that you shall be solely responsible for any artist and other third party royalties or other sums payable arising out of our exploitation of the Masters, Compositions and other rights granted hereunder). You further warrant and represent that you have consulted with counsel with respect to the execution of this agreement. You agree to and do hereby indemnify, save and hold us harmless of and from any and all liability, loss, damage, cost or expense (including reasonable attorneys' fees) arising out of or connected with any breach or alleged breach of this letter agreement or any claim which is inconsistent with any of the warranties or representations made by you in this letter agreement.

If the foregoing terms are acceptable, kindly sign on the signature line set forth below and fax this letter to our attention for countersignature. This letter with the Certificate of Authorship, attached hereto, shall constitute the entire agreement between the parties and can only be modified in writing.

Very truly yours,
[PRODUCTION COMPANY NAME]

____________________________
An Authorized Signatory

ACCEPTED AND AGREED IN
ALL RESPECTS:

___________________________
COMPOSER S.S. No.: ________________


This bit of boilerplate drives home that the composer is indeed transferring the copyright in both the recording and music to the producer. The composer also waives "moral rights," which means that the producer can make any changes to the score that it wishes, regardless of whether the composer approves.

EXHIBIT "A"
CERTIFICATE OF AUTHORSHIP

For One Dollar ($1.00) and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned hereby certifies that the undersigned will write or has written an original musical score (the "Score"), and will produce and record or has produced and recorded master recordings embodying the Score, each intended for initial use in the theatrical motion picture currently entitled "[TITLE OF PICTURE]" (the "Picture"), at the request of [PRODUCTION COMPANY NAME] ("Company") pursuant to a contract of employment between Company and the undersigned dated as of ____________, 2015 (the "Agreement") (the Score, the Masters and all other results and proceeds of the undersigned's services hereunder and under the Agreement are hereinafter referred to as the "Work"). The undersigned hereby acknowledges that the Work has been specially ordered or commissioned by Company for use as part of a contribution to a collective work or as part of the Picture or other audio-visual work, that the Work constitutes and shall constitute a work-made-for-hire as defined in the United States Copyright Act of 1976, as amended, that Company is and shall be the author of said work-made-for-hire and the owner of all rights in and to the Work, including, without limitation, the copyright therein and thereto throughout the universe for the initial term and any and all extensions and renewals thereof, and that Company has and shall have the right to make such changes therein and such uses thereof as it may deem necessary or desirable including but not limited, to the right to include the Work in the Picture in all media now and hereafter devised and on phonorecords and trailers, advertisements, promotions and co-promotions with respect thereto. To the extent that the Work is not deemed a work-made-for-hire, and to the extent that Company is not deemed to be the author thereof in any territory of the universe, the undersigned hereby irrevocably assigns the Work to Company (including the entire copyright therein and any extensions and/or renewals thereof), and grants to Company all rights therein, including, without limitation, any so-called "Rental and Lending Rights" and "Neighbouring Rights" pursuant to any European Economic Community directives and/or enabling or implementing legislation, laws or regulations (collectively, "EEC Rights"), throughout the universe in perpetuity, but in no event shall the period of the assignment of rights being granted to Company hereunder be less than the period of copyright and any renewals and extensions thereof.

Company's rights hereunder shall include, without limitation, the rights to authorize, prohibit and/or control the renting, lending, fixation, reproduction, performance and/or other exploitation of the Work in any and all media and by any and all means now known or hereafter devised, as such rights may be conferred upon the undersigned under any applicable laws, regulations or directives, including, without limitation, all so-called EEC Rights. The undersigned hereby acknowledges that the compensation paid hereunder and under the Agreement includes adequate and equitable remuneration for the EEC Rights and constitutes a complete buy-out of all EEC Rights. In connection with the foregoing, the undersigned hereby irrevocably grants to Company, throughout the universe, in perpetuity, the right to collect and retain for Company's own account any and all amounts payable to the undersigned with respect to EEC Rights and hereby irrevocably direct any collecting societies or other persons or entities receiving such amounts to pay such amounts to Company.

The undersigned hereby waives all rights of droit moral or "moral right of authors" or any similar rights or principles of law which the undersigned may now or later have in the Work. The undersigned warrants and represents that the undersigned has the right to execute this Certificate, that the Work is and shall be new and original with the undersigned and not an imitation or copy of any other material and that the Work is and shall be capable of copyright protection throughout the universe, does not and shall not, (i) violate the trademark, servicemark, or copyright of any third party; and (ii) to the best of undersigned's knowledge, violate or infringe upon any common law or statutory right of any party including, without limitation, contractual rights, and rights of privacy, or constitute unfair competition and is not and shall not be the subject of any litigation or of any claim that might give rise to litigation, including, without limitation, any claim by any copyright proprietor of any so-called "sampled" material contained in the Work. The undersigned further warrants and represents that the undersigned has attained the legal age of majority in the United States, and is at least eighteen (18) years of age. The undersigned further warrants and represents that, to the best of undersigned's knowledge, the undersigned will not utilize any persons who have not attained the legal age of majority and will not utilize the services of any undocumented alien in rendering services hereunder. The undersigned shall indemnify and hold Company, the corporations comprising Company, and its and their employees, officers, agents, assignees and licensees, harmless from and against any losses, costs, liabilities, claims, damages or expenses (including, without limitation, court costs and attorneys' fees, whether or not in connection with litigation) arising out of any claim or action by a third party which arises from a breach of any warranty or representation made by the undersigned in this Certificate or in the Agreement. The undersigned agrees to execute any documents consistent herewith and do any other acts consistent with this Agreement which may reasonably be required by Company or its assignees or licensees to further evidence or effectuate Company's rights as set forth in this Certificate or in the Agreement. Upon the undersigned's failure to do so after ten (10) business days of Company's written request, the undersigned hereby appoints Company as the undersigned's attorney-in-fact for such purposes (it being acknowledged by the undersigned that such appointment is irrevocable and shall be deemed a power coupled with an interest), with full power of substitution and delegation. Company shall promptly provide the undersigned with any documents exercised pursuant to the foregoing power of attorney.

The undersigned further acknowledges that in the event of any breach by Company of this Certificate, the undersigned will be limited to the undersigned's remedy at law for damages (if any) and will not have the right to terminate or rescind this Certificate or to enjoin the distribution, exploitation or advertising of the Picture or any materials in connection therewith, that nothing herein shall obligate Company to use the undersigned's services or the Work in the Picture or to produce, distribute or advertise the Picture, and that this Certificate shall be governed by the laws of the State of New York.

Company's rights with respect to the Work may be freely assigned and licensed and its rights shall be binding upon the undersigned and inure to the benefit of any such assignee or licensee.

The undersigned affirms and acknowledges that the undersigned has been advised and counseled with respect to the negotiation and execution of this document by an attorney of the undersigned's own choice or acknowledges waiver of such advice and counsel.

IN WITNESS WHEREOF, the undersigned has signed this Certificate as of ________________, 2015.

Signature
Printed Name: [NAME OF COMPOSER]
Social Security No.

AGREED AND ACCEPTED:

[PRODUCTION COMPANY NAME]

By: _____________________________
An Authorized Signatory


August ____, 2015

*******************************************************************************************************************************

SECOND AGREEMENT

[PRODUCTION COMPANY NAME]
[PRODUCTION COMPANY ADDRESS]

Dated as of _____ __, 2015
[NAME OF COMPOSER]
[COMPOSER ADDRESS]

RE: Original Music for the motion picture feature, currently entitled [TITLE OF PICTURE]

Dear Colleagues,

This letter shall confirm the agreement (the "Agreement") by and between [PRODUCTION COMPANY NAME] located at [ADDRESS] ("Company") at ____________________________, and [COMPOSER], at ___________________________ ("Composer") in connection with the motion picture feature presently entitled [TITLE OF PICTURE] (which together with all trailers, promotion, publicity, advertising and DVD supplemental material therefrom, is collectively referred to as the "Picture"). All of Company's obligations herein are expressly conditioned upon Company's receipt of fully executed copies of this Agreement.

1. Company hereby engages Composer to compose, arrange and produce original musical compositions (the "Compositions"), as further described in the attached Schedule A, for the score of the Picture, and to record and produce master recordings embodying the Compositions (the "Masters") used in the Picture. The music composed hereunder and all other results and proceeds of Composer's services are referred to herein as the "Work."

Similar to the first agreement, this deal requires the composer to produce as well as write the score.

2. Composer will render your services hereunder during the Term, as defined below, on a first priority basis. You will deliver to us the final mix of the Score no later than ______________, 2015.

This provision is favorable to the composer, as it does not require him or her to turn down other jobs while he or she is working on this movie.

3. Composer shall deliver the Work to Company pursuant to the following schedule (the
"Delivery Schedule"):

(a) Composer shall begin the production of the Work on approximately __________________, 2015; (or upon signing of the agreement and first payment, whichever comes first.)

(b) Composer shall essentially complete the work by ________________, 2015. Company shall be entitled to hear the Work prior to the final mix, which shall be subject to final approval by an individual designated by Company (or Company's designee) for such final approval. Composer agrees to be available for up to two (2) days of consultation, and shall make such revisions during that time in the Work as Company may reasonably require, provided that if after such revisions are made, Company does not accept the Work as acceptable, then Company shall pay Composer a "kill fee" of 25% of the total compensation otherwise payable under Paragraph 5 below in addition to the initial fee and Composer shall retain all rights in the Work and Company shall have no right to use the Work for any purpose.

This is far better than the first agreement in which the composer agrees to keep changing the music at the producer's request without limitation on the number of times the producer can demand changes.

(c) Upon Company's approval of final mixes of the fully produced Work, company shall make delivery ("Delivery") of the Work to ____________________ ("Company's Designee") via disc(s), DAT(s) or computer files (at Company's discretion). Simultaneously with Deliver of the Work or proper to Deliver, Composer shall submit a properly completed music cue sheet for the Picture, provided Composer shall not be responsible for procuring or providing information needed to complete the cue sheets related to third party licensed music. Company shall be responsible for filing final cue sheets to Composer's performance rights organization prior to the initial release of the Picture.

See the Introduction for explanation of a cue sheet and its importance.

(d) Composer shall deliver all Materials to Company's Designee, pursuant to the Delivery Schedule defined herein, to the following address and contact: _________________________

4. Composer shall be responsible for the production of the Work, the payment for all expenses related to the production of the Work, including, but not limited to, the hiring of musicians, the booking of recording sessions, the programmer and engineer. Composer shall not be responsible for a music editor. Company shall have approval over all stages of production of the Work and all constituent elements thereof including the final composition and orchestration. In addition, Composer shall consult with Company throughout the production of the Work.

As with the first agreement, this composer deal is "all-in," that is, the composer is responsible for expenses.

5. The term of this Agreement (the "Term") shall commence upon delivery of first payment and the signing of this agreement. The Term shall end upon delivery to Company of final Work (i.e., final mixes of the Masters), delivery of all documentation necessary for the full exercise of all rights granted hereunder and completion of all services required by Company hereunder but shall not extend past ___________, 2015. Time and full compliance of all delivery requirements are of the essence of this Agreement. During the Term, Composer shall not, without prior written consent of Company and/or Company's Designee, render or agree to render any services of any kind for any other person or entity which would or might conflict with, interfere with or prevent the complete rendition of the services required to be rendered by Composer hereunder. Notwithstanding the foregoing, the Work shall be delivered in accordance with Company's production schedule.

6. In consideration of the rights granted by Composer hereunder, Composer's services and the use by Company of the results and proceeds thereof, Company shall pay to Composer an aggregate amount of ______________ Thousand Dollars ($_____,000.00) (the "Fee"), which shall be inclusive of any and all expenses incurred by Composer in the production and delivery of the Work to Company, payable as follows: (i) $____,000.00 after (A) commencement of Composers' services hereunder and (B) receipt of an executed copy of the Agreement; (ii) the final $___,000 upon delivery to Company of the Materials. But Composer has agreed to defer the money due in ______________, 2015 until a mutually agreeable time not to exceed six months (________________, 2015). All payments made by Company and/or Company's Designee to Composer hereunder shall be inclusive of any sales tax or use taxes required to be paid by Composer to any governmental authority.

7. (a) It is expressly agreed that Composer is performing services hereunder as an Independent Contractor. Composer retains the copyright to the supplied Work but irrevocably grants Company, all synchronization, performance rights and licenses, the rights to secure copyrights throughout the world, the absolute and unrestricted right and permission to reproduce, adapt, edit, copyright, televise, exhibit, distribute, license, disseminate, display and otherwise exploit in any or all markets and media (collectively "use") the Compositions and Masters that Composer supplies to the production in the context of this film. This grant of rights is made without limitation upon time, circumstance, location, market or medium or use of this material in and related to the motion picture feature tentatively entitled "[TITLE OF PICTURE]."

Unlike the first agreement, here the composer retains his or her copyright in the music - both the underlying music and the recordings. This is a huge difference, as it allows the composer to re-use the music and make additional money from its exploitation.

(b) Notwithstanding the foregoing, Company acknowledges that Composer is a member of ASCAP and the worldwide non-dramatic public performance royalties in the Work shall be licensed through ASCAP. Company hereby acknowledges Composer's one hundred percent (100%) of the writer's share of the worldwide non-dramatic public performance royalties in the Work; and one hundred percent (100%) of the publisher's share of the worldwide non-dramatic public performance royalties in the Work with Composer's music publishing designee, _____________ (ASCAP).

Unlike the first agreement, the composer will collect 100% of the public performance royalties.

(c) Composer shall own and separately administrate one hundred percent (100%) of the publishing and one hundred percent (100%) of the so-called writer's share of the publishing rights in and to the Compositions. Composer shall own any and all rights in and to the Masters prepared in connection with the Picture subject to the terms stated herein.

(d) Company and its assigns, licensees, successors and designees shall have the unrestricted right of access to use the Compositions composed by Composer and the masters recorded by Composer in all media, now known or hereafter devised ,throughout the universe, in perpetuity in connection with the Picture.

(e) Without limiting the generality of the foregoing, Composer hereby acknowledges that Company shall have the right to synchronize, perform, and use the Work in the soundtrack of the Picture, and uses ancillary to the Picture, including, without limitation, in trailers, promotions and co-promotions, and advertisements for any or all of the foregoing, and in connection therewith, the parties acknowledge and agree that Company shall have the perpetual right, throughout the universe, to exploit the Work in or related to the Picture in all media including, but not limited to, theatrical release, subscription, satellite, pay/cable and free TV, audio-visual devices (including but not limited to video-cassettes and discs), trailers, advertisements and publicity therefore, any computer-assisted media including but not limited to CD-ROM, CD-I and similar disc systems, interactive cable and in all other uses associated with any new technology and media, whether now known or hereafter devised. Subject to the terms stated in this Agreement, any and all rights to the Work are owned by Composer.

(f) Company shall be free, at its sole discretion, to make any further use, recording, exploitation, publishing, and distribution of the Work and every arrangement, version, orchestration and adaptation thereof, and of recordings thereof as Company may desire in the Picture and any promotion or advertising for the Picture, free and clear of any and all claims by, or asserted, and all claims by, or asserted on behalf of, Composer or any third parties (including, without limitation, any and all composers, musicians and other persons who provide services, performances or materials in connection with the performance of the Work).

(g) Composer agrees to look solely to such society and/or Composer's music publishing designee for such royalties and waive any claim against Company for its publisher's share of such royalties received by Company. Notwithstanding the foregoing, if Company shall receive monies due to Composer, Composer's performing rights society or its publishing designee, then Company shall remit such monies promptly to Composer, Composer's performing rights society or its publishing designee.

(h) Composer shall have the right but not the obligation to exploit the Work in any other form or manner within Composer's sole discretion, throughout the universe and in perpetuity for any purpose except (i) in another feature length motion picture including documentary or "feature" motion picture for a period of three (3) years from the commercial release of the Picture, except with the prior written consent of Company; and (ii) use the Work in an album subject to subparagraph (i) below).

This pro-composer provision allows the composer to exploit the compositions and the masters for any other purpose except in another movie or full length album. For instance, the composer can license the compositions and masters for advertising campaigns or video games and collect 100% of the revenues.

(i) The parties acknowledge and agree that Composer shall have the right to include selections from the Work on any record album featuring Composer's solo work (with Company's prior written approval which shall not be unreasonably withheld by Company) provided that the following credit be placed by any of such composition's title: "Music from [Title of Picture]"

(j) Company, its successors and assigns shall have the right to make, distribute, or sell or authorize others to do the same, any phonorecords, including, without limitation, discs, tapes and devices of any speed or size of type, whether now known or hereafter devised, for the recording of the music material in any soundtrack album(s) for the Picture (the "Soundtrack Album"). The parties shall enter into negotiations in good faith terms for Composer's participation in such Soundtrack Album subject to record company's approval.

8. Company agrees not to exploit or use the Work other than as embodied in the soundtrack of Picture or in advertisements and promotional materials for the Picture. In connection with any other use or exploitation of the Work not set forth herein, Company shall consult with Composer in connection therewith; which such consent shall not be unreasonably withheld. In the case of a soundtrack album, Company shall consult with Composer whereby an agreement shall be negotiated in good faith.

9. The parties acknowledge and agree that Company is not and shall not be a signatory to any union, guild or collective bargaining organization concerning any musicians or performers who have rendered or shall render services in connection with the Work.

10. Composer hereby warrants, represents and covenants to Company as follows:

(a) Composer hereby represents and warrants to Company that Composer has the right to enter into this Agreement and perform all of its obligations pursuant to this Agreement.

(b) Composer shall be the sole author of all material contained in the Work; and that the Work shall be completely original with Composer and shall not infringe upon or violate any copyright, common law right or any other right, of any person, firm or corporation;

(c) That neither the Work nor any element of, or material contained in, the Work will infringe upon or violate the right of privacy of, or right of publicity of, or constitute a libel or slander against, or defame, or violate any copyright, trademark or service mark, common law or other right, of any person, firm or corporation or violate any other applicable law;

(d) Composer has acquired all rights necessary to its grant of rights to Company hereunder, including without limitation, all copyrights, music synchronization and music performance rights licenses;

(e) That no part of the rights herein granted to Company have been transferred to any third party and that said rights are free of any liens, claims and encumbrances whatsoever in favor of any other party, and that said rights and the full right to exercise the same, have not been in any way limited, diminished, or impaired; and that there are no claims, litigation or other proceedings pending, outstanding or threatened adversely affecting or that would or might in any way prejudice Company's rights hereunder.

11. (a) Composer assumes liability for, and hereby agrees to indemnify, defend, protect, save and hold harmless Company, its partners, divisions, subsidiary and affiliates, divisions and companies, distributors, assigns, licensees and the respective shareholders, directors, officers, employees and agents of the foregoing (the "Company's Indemnified Parties") from and against any and all claims, actions, suits, costs, liabilities, judgments, obligations, losses, penalties, expenses or damages (including, without limitation, reasonable legal fees and expenses) of whatsoever kind and nature imposed on, incurred by or asserted against any of Company's Indemnified Parties, arising out of any breach of any representation or warranty made by Composer herein or out of any other breach by Composer of this Agreement.

(b) Company assumes liability for, and shall indemnify, defend, protect, save and hold harmless Composer from and against any and all claims, actions, suits, costs, liabilities, judgments, obligations, losses, penalties, expenses or damages (including, without limitation, legal fees and expenses) of whatsoever kind and nature imposed on, incurred by or asserted against Composer arising out of any breach or alleged breach by Company of any representation, warranty or covenant made, or obligation assumed, by Company pursuant to this Agreement.

(c) In order to seek or receive indemnification hereunder:

(i) the party seeking indemnification must have promptly notified the other of any claim or litigation to which the indemnification relates; and

(ii) the party seeking indemnification must have afforded the other the opportunity to participate in any compromise, settlement, litigation or other resolution or disposition of such claim or litigation.

12. Provided that Composer fully performs all of her material obligations hereunder and is not in material breach of any of Composer's representations, warranties, obligations or agreements hereunder and the Work is synchronized to the Picture's visuals, Company shall accord Composer a credit substantially in the following form: "Original Music by [NAME OF COMPOSER]".

These credit provisions are much more favorable to the composer than the first agreement, and composers should seek to include these terms into any agreement they sign. A good credit can be essential in advancing a composer's career and securing higher fees in future projects.

(a) Such credit shall be on a separate card, in the main credit roll in the Picture.

(b) Credit in the same form as set forth herein shall be provided in any paid advertising and posters for the Picture, wherever the full billing block for the Picture appears.

The "billing block" is the list of names on the bottom portion of the official movie poster. In the layout of film posters and other film advertising, the billing block is usually set in a highly condensed typeface. A successful composer can negotiate for a larger size name.

(c) Except as set forth above, any and all other characteristics of Composer's credit shall be at Company's sole discretion. No casual or inadvertent failure to comply with the provisions of this Paragraph 11 nor any failure by third parties to comply with the credit provision shall constitute a breach of this agreement by Company. In the event of any failure by Company to comply with the foregoing credit provisions, and upon written notice from Composer thereof, Company shall take reasonable steps to prospectively cure any such failure which is economically practicable to cure (i.e., no recall of copies).

An established composer can negotiate for a credit in advertising any time the director or principal actors receive credit.

13. Composer and Company are independent contractors with respect to each other, and nothing herein shall create any association, partnership, joint venture or agency relationship between them. Composer shall be fully responsible for all persons employed by it, in connection with its performance hereunder, whether as independent contractors or as employees, and shall be fully responsible for them, for all compensation and/or withholding taxes, worker's compensation insurance or other required payments in connection with such persons, except as otherwise specifically and explicitly provided herein.

14. Company may use, and permit others to use, Composer's name, approved likeness, voice and approved biographical material (which shall not be unreasonably withheld or delayed by Composer) in and in connection with the Picture, the Work, any project or product derived from the Picture, if any, and the sale, distribution, promotion and advertising thereof. Except as otherwise stated under this Agreement, Company and its assignees shall have the sole and exclusive right to issue publicity concerning the Picture and concerning Composer's services with respect thereto except for Composer's own publicity provided that there shall be no derogatory statements or references concerning the Picture or any party or entity associated with the Picture

15. (a) All notices and other communications from either party to the other hereunder shall be in writing and shall be deemed received when delivered in person or five (5) days after deposited in the United States Mails, postage prepaid, certified or registered mail addressed to the other party at the address specified at the beginning of the Agreement, or at such other address as such other party may supply by written notice.

(b) Composer shall execute any and all further documents that Company may deem necessary and proper to carry out the purposes of this Agreement.

(c) This Agreement contains the full and complete understanding among the parties hereto, supersedes all prior agreements and understandings, whether written or oral pertaining thereto and cannot be modified except by a written instrument signed by each party hereto.

(d) This Agreement is to be governed by and construed in accordance with the laws of the State of New York, applicable to contracts entered into and to be fully performed therein. Any litigation, action or proceeding ensuing out of or relating to this agreement shall be instituted in a court of competent jurisdiction (whether state or federal) in New York.

(e) Composer shall not assign any of its rights or obligations hereunder without the prior written consent of Company, and any purported assignment without such prior written consent, shall be null and void and of no force and effect. Company shall have the right to assign this Agreement at any time to any person or entity, provided that person or entity which assumes Company's obligations in a writing signed by such assignee's duly authorized signatory.

(f) The parties acknowledge and agree that Composer's remedy for any breach of a term of this Agreement by Company shall be limited to monetary damages at law. Composer shall not have the right to rescind this Agreement or to any equitable or injunctive relief or otherwise in which there would be an interference or prevention of Company's right to finance, produce, market, distribute or otherwise exploit any and all rights in and to the Picture.

(g) Provided that Composer has rendered services as stated herein and Composer is not in breach of any material term stated herein, Company agrees to provide a DVD of the Picture in its completed form in a professional format (preferably mini-DV or Video DVD) for use solely as a sample of Composer's professional work, not for any commercial use or distribution.

(h) All representations and warranties contained herein or made in writing by Composer in connection herewith shall survive the execution, delivery, suspension and termination of this Agreement and any provision herein.

(i) No waiver by either party hereto, or any failure by any party hereto to keep or perform any covenant or condition of this Agreement, shall be deemed to be a waiver or breach of any preceding or succeeding covenant or condition.

(j) If any part of this Agreement shall be held to be void, invalid or unenforceable, it shall not affect the validity of the balance of this Agreement.

(k) The parties acknowledge and agree that this Agreement may be signed in counterparts (with the counterparts deemed to be one fully executed document) either manually, by facsimile or optical image scanner (e.g., pdf) and such signatures shall be deemed as binding upon the parties.

Kindly indicate your agreement to and acceptance of the foregoing by signing the enclosed copy of this Agreement where indicated below.

Company: [PRODUCTION COMPANY NAME]

By: __________________________________

Print Name: ___________________________

Its: __________________________________

Composer: ____________________

By: __________________________________

Print Name: ___________________________

Its: __________________________________ 


***************************************************************************************************************************
THIRD AGREEMENT

PRODUCTION, MUSIC SYNC, MASTER USE & VIDEO LICENSE AGREEMENT

This agreement (the "Agreement") is entered into as of May 11, 2015 (the "Effective Date") by _________ LLC (the "Licensee") with principal offices at ______________, and ______ ________ (the "Composer/Producer") with an address at ____________.

Licensee and Composer/Producer shall each be referred to as a "Party" or collectively be referred to as the "Parties".

For good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties agree as follows:

1. Production: The Composer/Producer shall produce a recording of a pre-exisint musical composition titled "__________" (the "Song") written by Composer/Producer. That recording shall be hereafter referred to as the "Recording" and shall be includive of the Song.The Recording will feature the vocal performance of Ms. __________ ("Artist") who is featured in the movie titled "____________" (the "Movie"). The recording shall take place on a date and time and at a location approved by Licensee.

Since the Composer/Producer is retaining rights in the Recording, he or she needs to have a separate agreement with the Artist so the Composer/Producer and the Artist know their respective rights and obligations with regard to the use of the Recording outside the movie.

2. Non-exclusive License.

(a) Composer/Producer hereby grants to Licensee a non-exclusive license to use the Recording, including the Song, in the Movie in any manner determined exclusively by Licensee, and to distribute the Movie in all media now known or hereby developed, throughout the world (the "Territory") for the duration of the Term (as defined below), as well as in advertising, publicity, and promotion of the Movie.

Since this is a non-exclusive license, the Composer/Producer retains the right to use the Recording, including the Song, outside the movie and retain all of the income. In this case, the Composer/Producer even retained the right to license the Song and Recording for use in another movie.

(b) Licensee shall be permitted to edit or modify the Recording or perform post-production mastering alterations to the Recording without the prior written consent of Composer/Producer. Nothing in this Agreement requires the Licensee to use the Recording in the Movie and the Licensee may use the Recording in whole or in part in Licensee's sole discretion. All rights in and to the Movie shall be owned solely by Licensee, and Composer/Producer shall have no rights therein.

3. Video.
Composer/Producer hereby grants to Licensee the non-exclusive right to use the Recording, inclusive of the Song, in a video to promote the Movie (the "Video"), and to distribute the Video in all media now known or hereby developed, throughout the world (the "Territory") for the duration of the Term (as defined below).

In this case, the Licensee movie producer wanted to make a video including the Recording to promote the Movie.

4. Publicity.

Licensee shall have the right to publish, advertise, announce and use the Composer/Producer's name, approved likeness and bio in connection with Licensee's exploitation of the Movie or the Video.

5. Consideration.

As complete and exclusive consideration for the services rendered and the rights granted to Licensee hereunder, Licensee is obligated to pay Composer/Producer the sum of __________ ($____) (the "Composer/Producer Fee"). The Composer/Producer Fee includes her travel to and accommodations in New York City. Composer/Producer hereby acknowledges that Licensee has paid the Composer/Producer Fee in full.

In this case the Composer/Producer had traveled from L.A. to New York and recorded the Song for the Licensee filmmaker and the Licensee had already paid her fee by the time I was asked to do the paperwork.

6. Term.

All licenses and rights granted in this Agreement shall commence on the Effective Date and extend for the duration of the copyrights in the Recording, the Song and the Video.

7. Limitations.

Composer/Producer reserves all of its right title and interest in the Recording and the Song not expressly granted herein.

8. Credit.

Licensee shall accord Composer/Producer screen credit in the Movie, substantially as set forth below, with respect to the Recording and the Song:

"[Name of Song]"
Words and Music by ________
Performed by [Artist]
Copyright (P) © 2015
Produced and arranged by ________

The foregoing credit shall appear in the main credit roll in the Movie. All other aspects of such credit, including size and placement, shall be determined by Licensee.

9. Cue Sheet.

Licensee agrees to prepare an accurate music cue sheet for the Movie and the Video and file the cue sheet with ASCAP, with a copy provided to Composer/Producer, within 30 days after completion of the Movie.

In this case, ASCAP was the Producer/Composer's PRO.

10. Notices.

Notice in regard to this Agreement shall be delivered by certified mail at to each Party at the addresses listed above or to a new address provided by either Party.

11. Representation and Warranty.

Composer/Producer and the Composer/Producer represent and warrant that Composer/Producer is the sole author of the Song, that the Song is completely original and contains no samples or other third party created content; that there are no liens or encumbrances on the Song and that Composer/Producer and the Composer/Producer have the full right, power and authority to enter into this Agreement and to grant the rights agreed to be granted hereunder.

12. Indemnity.

Composer/Producer and the Composer/Producer shall at all times indemnify and hold harmless Licensee from and against any and all third party claims, damages, liabilities, costs and expenses, including legal expenses and reasonable counsel fees, arising out of breach by Composer/Producer or the Composer/Producer of any warranty, representation or agreement made by them herein.

13. Miscellaneous.

Notwithstanding any provision of this Agreement to the contrary, nothing herein shall be construed to create a partnership or joint venture between the Parties, to authorize either Party to act as agent for the other, to permit either Party to undertake any agreement for the other, or to use the name or identifying mark of the other, all except as it is specifically provided herein. Neither Party shall be construed for any purpose to be an employee subject to the control or direction of the other. This Agreement is binding upon and shall inure to the benefit of the Parties' respective successors and assigns. Licensee may not assign any rights or obligations under this Agreement without the express written consent of Composer/Producer, which shall not be unreasonably withheld or delayed. This Agreement contains the entire understanding of the Parties relating to the subject matter hereof and supersedes any prior understanding or agreements. This Agreement may not be modified or amended except in writing signed by each of the Parties. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its principles of conflicts of laws. This Agreement can be signed in counterparts.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first written above


Composer/Producer _______________ LLC


___________________ ___________________________
Authorized Signatory

Name: ______________________

Title: _______________________


Center for Art Law Case Updates and Legal/Art News



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

Simcor LLC v. Mahama, 2:15-cv-4539 (C.D. Cal. June 15, 2015) --After discovering unknown Ghanian artist Ibrahim Mahama, plaintiffs Stefan Simchowitz and Jonathan Ellis King helped to build the young artist a studio and reputation. Mahama then contracted to create works exclusively for Simchowitz and King to display and sell. According to the plaintiffs, Mahama breached this agreement by selling 20 similar works to an unnamed collector and by disclaiming authorship of the 294 signed, commissioned works, reportedly because he was dissatisfied with the quality of the finished products. The plaintiffs have sued to recover $4.45 million from Mahama, the estimated value of the 267 unsold works in their possession.

Building Industry Association - Bay Area v. Oakland, 3:2015cv03392 (N.D. Cal. July 23, 2015) -- A developers' industry group has filed suit against the City of Oakland, alleging that the City's Percentage for Art ordinance violates the U.S. Constitution. The ordinance was passed in February and requires that 1% of the budgets for non-residential construction projects and 0.5% of the budgets for residential projects be spent on art. Among other arguments, the plaintiffs claim that this amounts to unlawful compulsion of speech in violation of the Free Speech Clause of the First Amendment.

Fontes v. Autocom Networks, Inc., C 15-02044 CRB (N.D. Cal. 2015) -- Dan Fontes' mural of Lake Merritt had been locally famous since it was painted on the side of an Oakland building in 1987. Fontes has filed suit against the building's current and former owners after the current tenant, a Nissan dealership, whitewashed the mural, which had already been damaged by graffiti. Fontes is seeking $400,000, arguing that the Visual Artists Rights Act (VARA) requires the building owner to give 90 days notice of its intent to remove an artist's work from its property.

Honolulu Art Museum v. Greene, Civil No. 15-1-1515-07 ECN (HI Cir. 1st, Aug. 28, 2015) -- The Honolulu Art Museum has filed suit against 80 year old art collector Joel A. Greene for $880,000, alleging that Greene failed to provide adequate provenance for five Southeast Asian works of art that he donated in exchange for quarterly payments of $80,000 for the duration of his life. Suspicions about the works, worth $1.275 million, first arose in 2011 after the Department of Homeland Security seized seven works from the museum that had originated from Asian art smuggler Subhash Kapoor.

Committee to Save Cooper Union v. Bd. of Trustees of the Cooper Union, No. 0155185-2014 (N.Y. Sup. 2015) -- Cooper Union has agreed to settle a 2014 lawsuit filed by a group of faculty and alumni to restore the school's 155 year old tuition-free model. The settlement, pending review by the New York Supreme Court, would create a "Free Education Committee" tasked with developing a plan to return to the no tuition system. The art, design and engineering college will also add alumni-elected members and two students to its Board of Trustees.

Other legal/art news:

PALMYRA NO MORE: Islamic State insurgents captured the ancient city of Palmyra in May, and despite statements that the historic site would not be damaged, proceeded to destroy ancient temples in August. According to the Director-General of UNESCO, the systematic destruction of the cultural heritage monuments "are war crimes and their perpetrators must be accountable for their actions. UNESCO stands by all Syrian people in their efforts to safeguard their heritage, a heritage for all humanity." The barbaric actions were preceded by the beheading of an 82-year old antiquities scholar, Khaled Assad, who supervised preservation of antiques in Palmyra for over 50 years."

HARD FEELINGS IN THE CLOUD: Anish Kapoor is feeling protective, read defensive, as his creations generate reaction from the viewers. In France, his installation "Dirty Corner" at Versailles was vandalized, to which Kapoor reportedly observed that the vandalism "represents a certain intolerance that is appearing in France about art." Following Kapoor's decision to leave the hateful graffiti on his work, Versailles municipal councilor, Fabien Bouglé, filed a complaint against the artist, stating that Kapoor's decision is breeding intolerance. Meanwhile, in China, a newly created public artwork, "Big Oil Bubble," by an unnamed artist, looks suspiciously like Kapoor's "Cloud Gate" in Chicago. Legal action may be forthcoming.

RESTITUTION CLAIM REJECTED: After reviewing a claim for a Renior painting held by the Bristol Museum and Art Gallery, the U.K. Spoliation Advisory Panel has decided that the painting will not be restituted to the heirs of Jakob and Rosa Oppenheimer. The rejection is based on a lack of evidence that supports the claim that the painting was part of a Nazi-forced sale in 1935.

FAMILY'S WARHOLS REPLACED WITH FAKES: A Los Angeles family recently discovered that their prized Warhol prints have been replaced with fakes. The prints were displayed in the family's movie editing studio for decades; the crime was discovered when the silkscreens began to sag in their frames and were taken for reframing.

DUE DILIGENCE? A French judge fined art dealer Yves Bouvier 27 million euros for his involvement in the sale a numerous stolen Picassos. Bouvier asserts that he was not aware the works he sold were stolen, and in fact performed due diligence checks on the works in question.


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.

September 24, 2015

Three Common Ways Employers Violate Wage-Hour Laws



By Kristine Sova
www.sovalaw.com

Employers often run afoul of wage-hour laws in similar ways, three of which are discussed below. Luckily, these errors can often be remedied, in a prospective manner, through a simple change in policy or practice.

Refusing to Pay for Unauthorized Overtime

Many employers require employees to seek approval before working overtime. While that is an acceptable policy to have, employers get in trouble when they refuse to pay for unauthorized overtime.

The idea of having to pay for unauthorized overtime seems at odds with a policy requiring advance approval of overtime hours. However, it's not inconsistent with the wage-and-hour laws requiring payment for that time.

How so? The federal Fair Labor Standards Act (FLSA) defines the term "employ" to include the words "suffer or permit to work," which essentially means that if an employer requires (or even allows) employees to work, the time spent is hours worked for which an employee must be paid. As a result, time spent doing work not requested by the employer, but still allowed, is compensable time.

Treating Salaried Employees as Exempt from Overtime Pay Merely Because They Are Not Paid on an Hourly Basis

Some employers assume that all salaried employees are exempt from overtime. As I have also discussed (http://sovalaw.com/blog/2014/02/27/some-of-your-salaried-employees-may-be-entitled-to-overtime-pay/?utm_source=Sova+Law+Blog+Newsletter&utm_campaign=54e516ff48-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_eff3a758ca-54e516ff48-62893717), this is not true. Salary ≠ exempt, and an employee must qualify for the applicable FLSA and state law exemptions in order for his/her pay to cover all hours of work in a workweek.

For employers who may have misclassified any positions as exempt from the overtime pay, and had those positions frequently work in excess of 40 in a workweek, the scary truth is that hefty back wages may be due those employees.

Interested in knowing more? Click here (http://sovalaw.com/blog/wp-content/uploads/2015/06/fs17a_overview.pdf?utm_source=Sova+Law+Blog+Newsletter&utm_campaign=54e516ff48-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_eff3a758ca-54e516ff48-62893717) for a fact sheet from the U.S. Department of Labor on the FLSA exemptions for executive, administrative, professional, computer, outside sales and highly-compensated employees.

Docking Hours of Certain Exempt Employees

Many of the FLSA exemptions require individuals to be paid on a "salary basis." Being paid on a "salary basis" means that an employee regularly receives a predetermined amount of compensation each pay period on a weekly, or less frequent, basis. The predetermined amount cannot be reduced because of variations in the quality or quantity of the employee's work. This means that, under the FLSA, an exempt employee must receive the full salary for any week in which the employee performs any work, regardless of the number of days or hours worked, subject to the exceptions below. If an employer makes deductions to an exempt employee's salary outside of these limited circumstances, the employer risks jeopardizing the employee's exempt status.

Deductions from pay are permissible only:

-when an exempt employee is absent from work for one or more full days for personal reasons;
-when an exempt employee is absent from work for one or more full days due to sickness or disability, but only if a formal policy is in place governing paid sick leave;
-when an exempt employee is absent from work for either partial or full days due to Family and Medical Leave Act (FMLA) leave;
-to offset amounts employees receive as jury or witness fees, or for military pay;
-for penalties imposed in good faith for infractions of safety rules of major significance; or
-for unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions.

There's one more exception to the requirement that an exempt employee must receive the full salary for any week in which the employee performs any work: employers are not required to pay the full salary in the initial or final week of employment.

September 29, 2015

Two Weeks in Review



By Zak Kurtz

Judge Fines Russia $44 Million for Refusing to Hand Over Jewish Books

Recently a federal judge ordered Russia to pay a $43.7 million dollar fine for refusing to return collections of Jewish books and documents to the Hasidic Chabad-Lubavitch group located in Crown Heights, Brooklyn. The center of this dispute relates to a collection of 12,000 books and 50,000 religious documents known as the Schneerson Library. These texts were gathered by the Chabad organization for over 200 years prior to World War II, and stored in Russia.

This ruling relates back to a 2010 decision by a federal district court for the District of Columbia that ordered the Russian government to hand over the Schneerson Library collection. The Russians claimed that this collection is a "treasure of the Russian people," and refused to abide by this decision. The Russians' failure to comply with this order forced the judge to fine Russia $50,000 a day in 2013. Now, with Russia's continued objections, the judge has issued another order. The $44 million order is an accrual of the previous fines so far.

Since 2010 the State Department has commented on this high profile case, and has claimed that the judge's decisions could inflame Russian-American relations. However, the judge and many others disagree.

http://www.nytimes.com/2015/09/12/books/russia-fined-44-million-for-refusing-to-hand-over-jewish-books.html?_r=2

'London Fields' Premiere at Toronto Festival Suffers Creative Rift

The Toronto International Film Festival saw the world premiere of "London Fields." The movie that is based on a noir, pre-apocalyptic crime thrilling novel by Martin Amis. However, the producer's version of this book caused a recent dispute over the control and content of the movie.

The film's top four stars -- Johnny Depp, Billy Bob Thronton, Jim Sturgess and Amber Heard -- all wrote letters to the movie's producers, objecting to a provocative cut of the movie. According to the letters, the movie's new cut includes violent imagery that was not overseen by the film's credited director, Mathew Cullen, but by another producer, Chris Hanley. For several months Cullen and the aforementioned actors claimed that Hanley turned "London Fields" into an unrecognizable, avant-garde experiment that violated the spirit of the project.

This battle regarding the new cut of the movie led Cullen to file charges against Hanley in Los Angeles County Superior Court. The complaint alleges that Hanley and his crew "secretly prepared their own version of the film." The suit requests that Cullen's name be removed from connection with this film, among other remedies.

The Toronto Festival's artistic director, Cameron Bailey, acknowledged the dispute in an email statement. Bailey concluded by stating, "We're aware that the team that made the film is coming to agreement, and we're looking forward to launching it." The dispute puts a cloud around a star-laden project. Hanley, on the other hand, described this situation a little differently, claiming that these creative rifts are a familiar part of the production process for him.

http://www.nytimes.com/2015/09/16/business/media/london-fields-premiere-toronto-troubled-by-creative-rift.html

YouTube Dancing Baby Case Sets Fair Use Copyright Guidelines

The decision in the highly awaited "dancing baby" case is in. The U.S. Court of Appeals for the Ninth Circuit in San Francisco issued a ruling that will change the way media companies handle their intellectual property online. The three-judge panel ruled that copyright holders must consider fair use before asking media companies like YouTube to remove videos that the copyright holders believe infringe upon their rights.

The ruling is viewed as a victory for Internet users, as the activity at issue in this case represents one that millions of individuals engage in on an ordinary basis. More specifically, recording family, friends, or one's self dancing or doing silly things with only minimal use of copyrighted material, is a regular happenstance.

The facts of this case could apply to almost anyone. In February 2007, Stephanie Lenz from Pennsylvania, filmed her toddler dancing to Prince's song "Let's Go Crazy" and uploaded it to YouTube. The 29-second video caused Prince's publishers to object to its posting and demand that it be taken down. Lenz then filed suit, which started a legal battle that lasted for more than eight years.

The advocacy group known as Electronic Frontier Foundation (EFF) represented Lenz in this lawsuit against media giant Universal. EFF's legal director stated that the ruling "sends a strong message that copyright law does not authorize thoughtless censorship of lawful speech."

A spokesman for the Recording Industry Association of America, Jonathan Lamy, said, "We respectfully disagree with the court's conclusion about the D.M.C.A. and the burden the court places upon copyright holders before sending takedown notices," referring to the 1998 Digital Millennium Copyright Act.

http://www.nytimes.com/2015/09/15/business/media/youtube-dancing-baby-copyright-ruling-sets-fair-use-guideline.html?_r=0

Instagram Is Redefining The Term 'User Engagement'

With the "dancing baby" decision highlighting one of the emerging areas of copyright law, the area relating to user-generated content remains murky. The New York Times highlighted the not so rare situation of Shareen Way, a mother who posted a picture of her four-year old daughter on Instagram wearing pink Crocs sandals, which image Crocs used for marketing purposes. Shareen posted her image using the hashtag #Crocs, and the company pulled that image from her Instagram account, featuring it in a gallery of its user-generated photos on its website without her consent. Only after a reporter on Instragram notified her did Crocs seek permission from her to use the image.

Social media sites like Instagram, Pinterest and Twitter have long been sources of selfies and candid shots that retailers and other companies mine for "consumer engagement." Instagram claims that it is only responsible for how brands use consumers photos posted on its site. The Federal Trade Commission (FTC) could essentially step in if Instagram violates its own privacy policy or terms of service, however, both situations are rare and leave users like Way with few options other than costly litigation.

The increase in user-generated content by companies and brands, mixed with the concerns by privacy groups and consumer advocates has only added to the confusion, as legal boundaries are far from clear. In 2012, Facebook reached a class-action settlement over its practice of turning a users' "likes" into ads tailored to their friends. The settlement is currently being appealed, however, it further accentuates the cloudy area into which user-generated content falls.

http://www.nytimes.com/2015/09/21/business/media/retailers-use-of-their-fans-photos-draws-scrutiny.html?_r=0

"Happy Birthday" Song Invalidated by Judge

Last week a judge ruled that the long held copyright in the "Happy Birthday to You" song is not valid. If the ruling stands, the song will become part of the Public Domain. Warner Music Group (Warner) has controlled the song's usage since 1988, and collected a reported $2 million annually in licensing. However, a Los Angles District Court decision has invalidated the company's right to the most popular tune in the English language.

The closely watched case began in 2013, when Jennifer Nelson, an independent filmmaker planning to make a documentary about the song, filed suit. The long awaited ruling this week discussed the complex history of the song, including the existence of copyright registrations and songbooks stretching back more than a century.

In short, the judge found that the successors-in-interest did not own a valid copyright in the "Happy Birthday" lyrics, thus invalidating the present claim by Warner. The 43-page ruling gives plenty of reasons for those closely watching this case as a challenge to long copyright terms and corporate control. A spokesman for Warner said that the company was "looking at the court's lengthy opinion and considering our options."

http://www.latimes.com/local/lanow/la-me-ln-happy-birthday-song-lawsuit-decision-20150922-story.html

http://www.nytimes.com/2015/09/23/business/media/happy-birthday-copyright-invalidated-by-judge.html


September 30, 2015

Entertainment Arts and Sports: One Man Connects Them All



By Bennet Liebman

There may be maybe some cynical individuals who consider the fields of entertainment, arts and sports law to be separate areas of legal practice. These individuals might similarly consider the Entertainment Arts and Sports Law (EASL) Section of the New York State Bar Association to be a catchall designation intended to bring a variety of disciplines together with one designation.

These cynics did not know Joseph Oller. Nobody signifies the connection of these practice areas better than he. Oller was not a lawyer; he was basically a 19th century businessman. He was not an American, and lived almost all of his life in France. He died in 1922, well before anyone would have envisioned the possibility of the existence of an EASL Section. Yet, Joseph Oller personified EASL.

Oller, who was born in 1839 in Spain, started off as a businessman in the sports field. He ran a business in Paris in the early 1860's selling tickets on horse races. It started off as a pool/sweepstakes business, wherein a customer bought a ticket on a race - without any selection of a particular horse or horses - and won a prize based on the outcome of the race. It was a game of pure chance, much like a raffle. The amount paid to the winning bettor(s) was based on the number of persons with winning tickets. Under these conditions, the proprietor of the pool deducted a certain share of the total wagers (generally 10%) for his or her own purposes, and the rest was paid out to the winning bettors in proportion to their shares of the net pool. Under this system, the bettors were wagering against themselves, and the pool proprietor kept a share of the total amount wagered.

The pool system was profitable, but it raised legal pitfalls. France had a law banning lotteries. It was likely that this pool system based entirely on chance would be considered a lottery. Accordingly, in 1868, Oller developed a system which added a skill element to the horse racing game. Under Oller's new pari-mutuel system, a number would be assigned to each horse in the race. "People are at liberty to stake upon the horse which most takes their fancy until a given time of the day." ("The 'Paris-Mutuels,'" Daily News of London, July 30, 1872). Oller would then take 10% out of the full pool for himself and paid the remaining net pool back proportionately to the people who had bet on the winning horse.

Oller's pari-mutuel system was a winner both in business and in the court of law. While the authorities prosecuted Oller and others for running a lottery, the pari-mutuel business survived the legal challenge. While the sweepstakes business was an illegal lottery, the pari-mutuel system was not. In the pari-mutuel context, the skill used by a bettor in using his or her own discretion in placing a wager on a particular horse sufficiently limited the extent of chance involved in the game, and placed it outside the realm of a lottery. The public took to the pari-mutuel system quickly, and Oller's business boomed. Oller even developed machines to help him calculate the pool payouts.

Oller's business was interrupted for a short time by the Franco-Prussian War of 1871. He returned after the war, and again his business prospered. In fact his pari-mutuels - occasionally called the Paris mutuels - may have become too successful. Numerous imitators (especially many from Great Britain) followed Oller's example and started a slew of pari-mutuel businesses in Paris. (Oller appeared to run the largest of these businesses.) In August of 1874, the authorities raided and indicted all pari-mutuel operators.

This time, the basis of the suit was that the pari-mutuel operators had defrauded the bettors in connection with the operations of the wagering. All 24 defendants were convicted. Oller was fined $4,000 francs and spent 16 days in jail. His days of operating a pari-mutuel business were ended.

Eventually, however, Oller's system triumphed both in France and the rest of the world. In 1891, France outlawed bookmaking and made Oller's pari-mutuel system the only legitimate way of wagering on horse races. Pari-mutuel wagering spread to the United States, and now outside of Nevada, federal law makes pari-mutuel wagering the only legal method for betting on horse racing, dog racing or jai alai. According to the Encyclopaedia Britannica, Oller's pari-mutuel system "has spread to every country in the world and forms the rational basis for running nearly all modern lotteries as well as most organized betting on horse racing, association football (soccer) and other professional sports." Oller's 1868 system is a dominant factor in the world of sports.

After his ventures into the gambling world concluded, Oller became involved in the entertainment business. In 1889, he owned and opened the Moulin Rouge, the nightclub cabaret. Not only did the Moulin Rouge quickly become famous for its entertainment, it was soon known worldwide for popularizing the Can-Can dance. The dancers who performed the Can-Can became celebrities. The entertainment and the atmosphere at the Moulin Rouge made it a recognizable and notorious symbol of pre-World War I Paris.

The entertainment aspect of the Moulin Rouge continues to this day. There have been numerous books, movies and a musical about it; including John Huston's 1952 "Moulin Rouge", the 2001 Baz Luhrman musical similarly entitled "Moulin Rouge!", and Cole Porter's Broadway 1953 musical (later a 1960 movie) "Can-Can". Charles Aznavour's musical "Latrec," which ran in London in 2000, similarly focused on the Moulin Rouge. With a revised book, and newly entitled as "My Paris," the Aznavour musical ran this summer at the Goodspeed Theatre in Connecticut.

Similarly, the art aspect of Joseph Oller's Moulin Rouge remains with us. The paintings and posters of Toulouse Lautrec are an integral part of the Bell Époque art movement. Other artists similarly have painted scenes from the Moulin Rouge. A number of composers, including Franz Lehar and Jacques Offenbach, have written music for the Can-Can. There is even "Moulin Rouge - The Ballet", which has been a major hit for the Royal Winnipeg Ballet over the last decade. Finally, the Moulin Rouge has always played an outsized role in the fashion world. Even the 2001 Baz Luhrmann film inspired a fashion trend, as Moulin Rouge boutiques opened in the United States, and "numerous designers from Los Angeles watched the film and then created their own version of the `Moulin Rouge' look with petticoats, dresses, crystal chokers, tiaras, gloves, hats, tap pants, bustiers and stockings." (See Barbara De Witt, "Fashion Designers Go Ga-Ga Over Can-Can," Long Beach Press-Telegram, May 21, 2001.)

Jospeh Oller achieved the hat trick of the EASL Section. He was a most prominent figure in entertainment, arts and sports. He demonstrated that the three areas were not merely compatible, but that they could be part of one achievable and realistic alliance. In the 19th century, Joseph Oller embodied the work of the EASL section.

Freedom to Engage in Cultural Activities and Other Legal Issues in Busking



By David Ma

Busking has gained popularity in Hong Kong, which has yet to implement a licensing scheme for such solicitation. This blog examines various laws that impact the right of buskers.

Playing Musical Instrument and Obstruction

The Summary Offences Ordinance (Cap 228) (SOO) creates the below offences punishable by a fine of $500 or to imprisonment for 3 months:

• Under §4(15), it is an offence for any person to without lawful authority or excuse play any musical instrument in any public street or road save under and in accordance with the conditions of any such general or special permit as the Commissioner of Police in his absolute discretion may issue. (emphasis added)

• Under §4(28), it is an offence for any person to without lawful authority or excuse do any act whereby injury or obstruction, whether directly or consequentially, may accrue to a public place. (emphasis added)

Under Article 34 of the Basic Law, Hong Kong residents have the freedom to engage in academic research, literary and artistic creation, and other cultural activities. The courts have held that the restrictions of such freedom under the SOO are rational and proportional for the purpose of public safety.

While §4(15) mentions that a permit to play musical instrument in public street may be secured from the Commissioner of Police, no information is available on the Hong Kong Police Force website. In Wong Chung Sing (HCMA 92/2015), Judge Li criticized the obscurity of the permit application process and the lack of appeal mechanism. It was held that playing an instrument without a police permit would not constitute an offence if there was a "lawful excuse" to do so.

In relation to "lawful excuse", the Court of Final Appeal held in Yeung May Wan ((2005) 8 HKCFAR 137) that the prosecution must show that the defendant had no lawful excuse to obstruct before there could be a conviction under §4(28). A person who obstructs a place "cannot be said to be acting without lawful excuse if his conduct involves a reasonable use of the...public place". ((2005) 8 HKCFAR 137 at paragraph 42) When assessing whether the obstruction is reasonable, the protection given by the Basic Law, such as the freedom to demonstrate under Article 27, must bear substantial weight.

It follows that when considering whether there is lawful excuse in playing an instrument in a public place under §4(15), the court must consider the reasonableness of the act with reference to the freedom to engage in cultural activities under Article 34. The prosecution would only succeed if it could show that the busker acted outside the scope of the lawful excuse by causing excessive obstruction or annoyance. Unfortunately, it appears that not all police and prosecution are mindful of this balancing exercise in performing their duties:

• Wong Chung Sing, a busking musician, was convicted under §4(15) on three individual occasions in 2008, 2009 and 2015. (HCMA 357/2008, HCMA161/2009 and HCMA 92/2015) He appealed each time by referring to his rights under Article 34, but only succeeded in the most recent case in which Judge Li quashed the conviction on the basis that the Magistrate erred in imposing the prosecution's burden of proof onto Wong and did not give substantially weight in considering Wong's freedom to engage in cultural activities under Article 34 (HCMA 92/2015);

• So Chun Chau, a busking acrobat, was charged by the police under section 4(28) and appeared in the Magistrate's Court in 2010. The magistrate held that So's act of tossing a diabolo high up in the air was reasonable when considered in light of Article 34 and did not constitute obstruction under §4(28) (ESS19669/2010);

• In Yeung May Wan, the Court of Appeal doubted whether the police officers, prosecution and magistrate appreciated that unreasonable impediment must be shown before conviction of the obstruction charge under §4(28). The Court of Appeal endorsed such view and quashed the convictions of the defendants. (This was not a busker case, but was about a Falun Gong demonstration.)

Place of Public Entertainment Licence

Section 4 of the Places of Public Entertainment Ordinance (Cap 172) (PPEO) sets out that it is an offence for a person to keep or use any place of public entertainment without a licence granted under the PPEO. Under §2 of the PPEO, a "place of public entertainment" is defined as "any place...capable of accommodating the public...in or on which a public entertainment is presented or carried on", and "public entertainment" is defined as any entertainment to which the general public is admitted with or without payment.

The case of T v Commissioner of Police(CACV 244/2012) involved a participant in the International Day Against Homophobia Demonstration (IDAHO) performance, which included recital and chanting of slogans and dance to pre-recorded music. The performance took place on a temporary stage and the open space in front of it on a Causeway Bay street which was designated as a pedestrian precinct at the relevant time. The performance was stopped after police intervention on the basis that the performers were using a place of public entertainment without a licence. In the appeal to the judicial review sought by T, the Court of Appeal referred to the UK case of R v Bow Street Magistrates' Court ex p McDonald ((1996) 93(15) L.S.G. 30), which involved a busking guitarist in Leicester Square. In that case, the UK Court of Appeal held that a guitarist did not require a licence under the London Government Act 1963, as it was the City Council, instead of the busker, which had control over Leicester Square to which the public had free access. In T, the Court of Appeal found that as the IDAHO organizers did not have the ability to control admission to the dance performance. Therefore, the location where the performance took place was not a "place of public entertainment", and T was not required to apply for a PPEO licence.

It would appear that a busker does not require a PPEO licence to perform in public unless the busker undertakes control and admission to the area of his or her performance, which is unlikely and probably impossible in most circumstances.

Begging

Section 26A of the SOO makes it an offence for a person to beg or gather alms in any public place or street. There are other laws against begging in relation to specific locations, for example section 14 of the Bathing Beaches Regulations (Cap 132E) and the §27 of the Pleasure Grounds Regulations (Cap 132BC).

The UK case of Gray v Chief Constable of Greater Manchester ([1983] Crim LR 45) held that a busking guitarist in a passageway who received tips from passersby was not guilty of the offence of begging under the Vagrancy Act 1824. This was because the busker gave value for money, and passersby were not forced to deal with the busker. This suggests that buskers should be safe from prosecution under laws against begging.

Other Laws

There are other laws which impact the right of a busker to perform. For example,

• Section 5 of the Noise Control Ordinance (Cap 400) makes it an offence for a person in any public place to play any musical or other instrument or uses any loudspeaker or other instrument which produces noise which is a source of annoyance to any person.

• Section 25 of the Pleasure Grounds Regulations (Cap132 BC) prohibits a person to play an instrument or sing in any public pleasure ground (as specified in the Fourth Schedule of the Public Health and Municipal Services Ordinance (Cap 132) excluding bathing beaches) to the annoyance of others unless a written permit is obtained from the Director of Leisure and Cultural Services. No details on such a licence are available on the website of the Leisure and Cultural Services Department. It is unclear as to how "annoyance" will be interpreted, but the protection given by Article 34 of the Basic Law should be taken into the assessment.

• By-laws, such as §26 of the Mass Transit Railway By-laws (Cap 556B), §24 of the Mass Transit Railway (North-West Railway) Bylaw (Cap 556H), and §31 of the Tung Chung Cable Car Bylaw (Cap 577A) prohibit the singing, dancing and playing of musical instruments on any part of the premises of these transportations.

Conclusion

The introduction of a proper busker licensing scheme by the Government and public transit operators would bring Hong Kong into line with other international cities that promote this art form. Until then, buskers should tread carefully so that they do not end up on the wrong side of the law.

Defamation 2.0 - Defamation Liabilities for Internet Operators in Hong Kong


By David Ma

Unlike in the U.S. (with the Communications Decency Act, §230, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider") and the U.K. (with the Defamation Act 2013, § 5(2), "It is a defence for the [website] operator to show that it was not the operator who posted the statement on the website"), internet operators in Hong Kong do not receive statutory protection from defamation. This blog reviews the findings in recent Hong Kong cases.

(1) Internet Forum Operator

An internet forum operator that actively encourages user postings is different from a notice board owner ambushed with a defamatory message in trespass. (For example, Byrne v Deane [1937] 1 KB 818) The operator, unlike a post office or a telephone company, is not a mere conduit or passive facilitator. However, the operator would not be deemed to have authorized defamatory posts if it lays down rules prohibiting offending contents, despite inefficient enforcement.

A forum operator is a publisher, as it provides the platform for the postings. However, as long as it does not know of the gist or substance of the postings and cannot prevent their publication, it would be considered a subordinate, rather than a primary publisher. As a subordinate publisher, the operator would qualify for the innocent dissemination defense if (a) it exercises reasonable care and is not aware of the defamatory content, and (b) upon notice promptly takes "all reasonable steps to remove the offending content from circulation as soon as reasonably practicable". (Oriental Press v Fevaworks [2013] HKCFA 47)

(2) Content Aggregator

Posting hyperlinks onto a website is not equivalent to publishing the defamatory content contained in the hyperlinks. The former act does not fall within the strict publication rule. Mere linking is content neutral and analogous to having a footnote bringing attention to readers that a source existed, without repeating the content.

However, the situation is different if there is a deliberate act to make defamatory information readily available to a third party in comprehensible form, i.e. by deep linking, with actual receipt by a third party. (Crookes v Newton [2011] 3 SCR 269 (Supreme Court of Canada), as cited in Fevaworks) Content aggregators reproducing excerpts from and hyperlinking to external sources may attract publisher liabilities if the excerpts contain defamatory wording.

(3) Search Engine Operator

(a) Basic search engine (Edmond Yeung v Google (Hong Kong) Limited DCCJ 4322 of 2013)

A search engine operator that displays snippets of information with hyperlinks generated from automatic algorithmic web-crawling is a facilitator and not a publisher, on the basis of authorship or acquiescence. This is so because there is no human input from the operator, no control over search terms typed in by future users, and no mental element for publishing on the part of the operator.

As long as the search engine has a notice and takedown procedure and makes reasonable efforts in complying with legitimate requests, "it is hardly possible to fix [the search engine operator] with liability on the basis of authorisation, approval or acquiescence". (Metropolitan International Schools v Designtechnica [2009] EWHC 1765 (QB), as cited in Edmond Yeung, at paragraph 58)

(b) Autocomplete and related searches

Although there is no human input, "autocomplete" and "related searches" functions go beyond mere crawling and automatic reproduction of snippets and hyperlinks. By aggregating prior user searches and generating predictive keywords, the search engine operator may have ventured from the territory of a mere conduit or a passive facilitator into that of a publisher. The matter will likely receive further judicial attention in the near future.


About September 2015

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

August 2015 is the previous archive.

October 2015 is the next archive.

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