Tag: royalties

Filmmaker Ungrateful About Claimed Copyright Infringement

Filmmaker Ungrateful About Claimed Copyrighted Infringement

 

The Back Story for the Copyright Infringement Lawsuit

 

Grateful Dead copyright infringement
Grateful for copyright law

A California filmmaker, Len Dell’Amico, is suing the Grateful Dead for copyright infringement over his allegation that the band leased documentaries and concert films that he created and owned. This long, strange trip begins in 1980 when Dell’Amico, a NYU film and television grad, first worked with the band on it’s live TV broadcast and home video ‘Dead Ahead.’ Dell’Amico would go on to be the Dead’s ‘film and video guy’ for the next 11 years, producing and directing their film projects from 1984 to 1991. Dell’Amico also claims in his lawsuit that they negotiated a deal for back-end compensation from the video release of these works. The years rolled along and, in late 2006, Grateful Dead Productions leased the films to Rhino Entertainment for 10 years. Rhino never credited Dell’Amico for producing and directing the films, nor paid him the promised back-end compensation (“royalties”). The lawsuit was on.

Failure to Register Copyrights Creates a Problem

 

But here’s the rub: Dell’Amico never applied to register any copyrights to the films until recently. The registrations are currently pending at the U.S. Copyright Office. Dell’Amico lacks definitive proof that he actually owns the right to the films. And this is exactly what the band is arguing. The Grateful Dead recall things differently from Dell’Amico and claim he was only a hired gun to produce and direct their films. The band owns all rights to the films because Dell’Amico was compensated for his work and their arrangement kept copyright ownership with the band. As it stands, without the clear proof of copyright registration, it’s a he said, they said matter.

Copyright Ownership Can Still be Proven in Other Ways

 

This doesn’t mean that Dell’Amico’s lawsuit is busted down on Bourbon Street. A 2002 agreement for a Grateful Dead documentary “So Far” gives Dell’Amico a 50 percent cut of the film’s revenue up to $25,000 and 15 percent of gross income over $750,000. This agreement does provide some proof that Dell’Amico created and owns the rights to the films that are the subject of his lawsuit. That agreement clearly came about because there was a belief Dell’Amico owned the copyright to the film. It may also show that he owns the copyright to the films that are the subject of his lawsuit.

Two Important Lessons from this Copyright Infringement Lawsuit

 

However the lawsuit plays out, the dispute highlights two important principles. The first is an overwhelming reason to register your copyrights. Dell’Amico likely would have a much easier time proving his allegations if he had taken the time to register any copyrights two decades ago. This lack of foresight could cost him big time. The second is over the issue of copyright ownership. If you are hired to create works that are covered by copyright law (music, film, television, dance, etc.), an important part of that arrangement is who keeps ownership of the copyright to the works.

Add a comment to share your own story or your thoughts on these issues.

Ari Good, JD LLM, is an experienced Miami entertainment lawyer and aspiring musician himself who represents DJs, live musicians, fashion models, and other entertainers in copyright, licensing, and contract matters.

For a free and confidential consultation to discuss your legal rights, contact Ari of Good Attorneys at Law, P.A., in Miami-Dade County at (239) 216-4106 or toll free at (877) 771-1131 or by email to info@goodattorneysatlaw.com.

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The Six Rights of Copyright – Part IV: The Right to Publicly Perform

The Right to Publicly Perform is the fourth part in our series on what makes a Copyright.  The prior three rights reviewed are linked below for you to get up to speed.  To refresh, the six parts of copyright are:

  • The right to reproduce the copyrighted work
  • The right to prepare derivative works based upon the work
  • The right to distribute copies of the work to the public
  • The right to publicly perform the copyrighted work
  • The right to publicly display the copyrighted work
  • (sound recording only) The right to digitally transmit to publicly perform the copyrighted work

To try to get behind the curtain of copyright, we’re individually exploring each of these six rights.  An understanding of each and how they operate will allow you, the creator, to be in a better position to take advantage of your copyright.

There are a couple words of caution.  First, the practical effect of these exclusive rights will depend on the type of copyrighted work (literary works, musical works, motion pictures, sound recordings, etc.).  Second, these are exclusive rights.  The law allows only the copyright holder to exercise these rights.

IV.  The Right to Publicly Perform the Copyrighted Work

 

The right to publicly perform means only the copyright owners, or others they authorize, may perform their works publicly. 

 

This right prohibits would be thieves from performing a copyrighted work before the masses and profiting from that theft.  As an exclusive right, anyone wishing to perform a copyrighted work publicly must first obtain permission from the copyright owners.   Copyright owners, at least in the music industry, are often different from the people who created the work in the first place.  How far this right extends depends on answering two questions.

  1. What acts does a performance cover?
  2. When is that performance public?

The definition of performance under the Copyright Act goes beyond the usual examples of live works.  

 

Right to Publicly Perform
Live Public Performance

The term performance certainly covers situations when a person executes a copyrighted work live.  Examples of this include a band playing music in front of a crowd, a theater company performing a ballet before an audience, or people watching a film at the movie theater.  However, it also covers analog or digital transmission of performances by radio, television, and internet streaming.  Examples of transmitted performances include a song played on the radio, a recording of the ballet played on television, and a film screened for locals at a community park.  A performance occurs when the work is done live and when someone transmits a recording of the work.

The definition of public under the Copyright Act means any group beyond family and close friends.

 

A performance is public when the work is performed: (1) in a place open to the public, or (2) at a place where a substantial number of persons outside of a normal circle of a family and its social acquaintances are gathered.  In plain English, music you play for your family (3rd cousins need not apply) or close friends (not everyone on your Facebook friends list) will be a private performance.  Putting out flyers for your upcoming rendition of Britney Spears’ greatest hits, however, would be a public performance.  A performance is also public when you transmit the copyrighted work to a general audience.  This happens when a radio station plays a song, a television show includes that song during a dramatic break up scene, or you stream the song from your internet radio station.  Transmission of a performance will be public unless you restrict it to only your family or close friends.  As a general rule, live or recorded performances that can reach more than a few people will be public performances.

The traditional right to public performance applies to musical works, but not sound recordings.

 

Copyright owners of musical works (songwriters and music publishers) gain the traditional right to public performance.  Copyright owners of sound recordings (record labels), however, are left out in the cold.  A musical work is the composition, arrangement, lyrics, and other details that embody a song.  A sound recording is a specific performance of that musical work.  A musical work results when a band gets together to create an album.  A sound recording results when that same band goes into the studio to record the album.  The practical effect of this distinction is that analog radio stations must obtain a license only for musical works before playing songs on the air.  They don’t need permission from the owners of sound recordings that they actually broadcast.  This is true even though radio stations would have nothing to play without these sound recordings.

Three U.S. Performance Rights Organizations (PRO’s) (BMI, ASCAP, and SESAC) handle the vast majority of licensing and royalty issues for musical works.  There is a vast sea of musical works out there.  PRO’s strive to organize this complex network by licensing musical works on behalf of songwriters and bands.  The PRO’s then collect royalties for the licenses and send checks to the songwriters and bands.  The PRO’s are certainly not charitable entities, however, and take a cut of the royalties to cover the expenses in managing the system.  Some would say too big of a cut.

This oddity of the traditional public performance right has its roots in the history of Copyright.  Copyright protection existed long before people could record music and sheet music (an example of musical works) was the standard.  Copyright protection for musical works was necessary at that time, but obviously not so for non-existent sound recordings.  Copyright law failed to keep up with evolving technology, however, when sound recordings emerged to provide people with a different way to access music.

Congress tried to fix the problem by passing the Digital Performance in Sound Recordings Act (DPSRA).  This created the sixth right of Copyright: the right to perform publicly by digital transmission.  The DPSRA did provide relief for sound recording owners, but also created a volatile two-class system.  Internet radio stations like Pandora and Spotify now have to obtain licenses and pay royalties to copyright owners of musical and sound recordings.  Analog radio stations, on the other hand, continue to enjoy preferential treatment and only have to answer to copyright owners of musical works.  Analog radio stations have a huge financial advantage over internet radio stations as a result.

The right to public performance does have its limitations.

 

For every rule, there are exceptions.  The right to public performance is no different.  Charitable, non-profit, and educational groups may publicly perform copyrighted works without permission if it’s for a reason recognized by law.  Certain businesses may also play copyrighted music without permission for their customers if they play by the rules.

  • The business must receive the music from a licensed radio, cable, satellite, or television broadcast;
  • The business must be on the smaller side;
  • The business must play it only in their establishment;
  • The business cannot charge an admission fee.

A club that charges admission to listen to a recording of the latest, greatest pop album is not going to fall into this exception.  The ubiquitous Fair Use exception to copyright protection can come into play for the public performance right, too.

That’s a lot to go over!  Go ahead and ask questions if you have them, or leave a comment if have an interesting anecdote about the public performance right.

–          Ari Good, Esq.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A.  Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993.  He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida.  Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.

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Top 10 Reasons To Register Your Copyright

The sheer act of creating an original piece of art makes it yours and yours alone.  That unique beat, the words to a song, steps to a dance, or outline to a TV pilot: It’s your intellectual property.  This property, like real estate or a bank account, holds value and you should protect it.  Certainly, if someone is to become famous from your musical ideas or reap vast profits from their sale, it should be you and not the person who ripped your ideas off.

Copyright symbol
Copyright

In an ideal world, no one would steal intellectual property and claim it as theirs. Even in a perfect world people can still innocently and independently create works of art that are functionally identical.  Proving that you created the work of art first would be a difficult task at best.  Nevertheless, just like there are vaults to protect your money and deeds to prove you own land, the law provides a simple way to protect your intellectual property: registering a copyright.  With due apologies to David Letterman, and in no specific order, here are the 10 Ten Reasons to Register a Copyright:

  1. A registered copyright puts the rest of the world on notice.  It’s your legal proclamation to the world that you own certain intellectual property and unauthorized copies are illegal.  Registration warns would be thieves that any larceny of your ideas is at their own risk.
  2. A registered copyright protects your intellectual property from innocent, but unauthorized, reproduction.  A famous example of this occurred when David Bowie sued Vanilla Ice for copyright violation over the hook to “Ice, Ice Baby.”  Even though Vanilla Ice claimed he innocently copied the beat (later retracted), he still owed David Bowie compensation for its use without permission.
  3. A registered copyright gives credit where credit is due.  This is a legal, public record that you are the author of a work of art, not someone else.  Registration vindicates a very important principle beyond issues of money.
  4. A registered copyright let’s you sue for ‘statutory damages’ and attorney fees.  In simple terms, suing for statutory damages means you don’t have to prove that you actually suffered harm from a copyright violation.  A typical lawsuit requires proving harm.  You can sue for up to $150,000 for an intentional violation and up to $30,000 for an unintentional violation.  CAUTION: you must register your copyright within 3 months of making it public to be able to sue for statutory damages.
  5. A registered copyright, in a copyright infringement lawsuit, provides clear evidence that you own certain intellectual property.  This means that the defendant in the lawsuit has the burden of proving that no violation occurred or they lose.
  6. A registered copyright allows you to record the copyright with U.S. Customs.  U.S. Customs in turn will protect you against the importation of illegal copies from other countries.
  7. A registered copyright let’s you stop someone from making illegal copies.  You can obtain a court order that forces an infringing party to cease and desist from their infringement.  This is what occurred when record labels sued Napster.
  8. A registered copyright is necessary to sue for copyright infringement.  In order to take advantage of the system, you need to be a player.  You gain significant legal protection by registering your copyright under the laws of copyright.
  9. A registered copyright provides legal protection beyond death.  U.S. Copyright laws often create a situation where your copyright can still be enforced after you’re long gone.  Although you can’t take riches to heaven, this would be important for someone who wants to provide for loved ones after they’re gone.
  10. A registered copyright saves time and money.  It’s certainly possibly to sue someone for stealing your intellectual property even without a registered copyright, it’s just not a good idea.  For some reason, waving a certificate of copyright, rather than lyrics scribbled on a napkin, just seems to go over better in court.  Registering a copyright makes this legal process much more simple and cost effective when an attorney is necessary.

This is my list of the top 10 reasons to register a copyright.  It doesn’t mean that there are only 10 reasons, though, or that we can agree these are the 10 most important reasons.  What other reasons are there to register a copyright or why do you think one reason is more important than another?

–          Ari Good, Esq.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A.  Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993.  He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida.  Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.

“No Stairway. Denied!” – The Effect Of Copyright On DVD Releases

The Copyright Effect of Music and DVD Releases of TV Shows and Films
Licensing Music that has Copyright Protection for DVD Releases of TV Shows and Films

For those of you in the right demographic, you may recall a sketch comedy show that aired on MTV in the early 1990’s, “The State.” This critically acclaimed, but commercially unsuccessful, production featured many skits that featured popular music to construct its humor. (Marvin Gaye’s “Let’s Get It On” being one example). This background music was often critical for comedic effect. MTV was able to liberally insert copyrighted music in the show because it had generous licensing deals with various record labels at the time. These deals allowed it to use songs from music videos aired on its network for its original programming without having to pay royalties.

In no small part to the music used, The State developed a cult following during its 4-season run and many clamored for its DVD release years later. There was a major snag, however. MTV did not have the broad licensing rights necessary to include the original music for home video (e.g. DVD) reproduction. Its music license only covered television broadcasts. A simple calculation revealed that the cost to obtain licensing rights to include the original music for the DVD release would have swamped any profit from selling the DVD’s of the niche show. MTV instead opted to dub over the songs with cheap alternatives and blur any copyrighted images. The end product was a watered down version of the show that alienated fans and skits that made little sense to the newcomer.

The State is just one example of the issue of copyright and DVD releases of older films and televisions shows. Many other programs far more popular than The State have been affected, including: Saturday Night Live, In Living Color, WKRP in Cincinnati, 21 Jump Street, Grease, Captain America: The First Avenger, and even Wheel of Fortune. This clip from Wayne’s World highlights the effect of such changes:

In the theatrical release of the movie, Wayne plays the first four notes to “Stairway to Heaven,” but an employee quickly cuts him off and points to the store’s “No Stairway to Heaven” sign. The joke parodies novice musicians’ need to jam that particular song over and over in guitar shops, but never buying anything. As you can see in the video clip of the DVD release, however, Wayne’s intro of Stairway is dubbed over with a bland guitar riff. This is because Led Zeppelin refused to give permission, at any price, for the studio to use their song in the release of Wayne’s World on DVD. Without the subsequent dub over, the studio would have been infringing on Led Zeppelin’s copyright to the song. The dubbed version, however, fails to make sense without those four notes, especially to an international audience of first time viewers. Even when copyright permission is available for other works, executives have resorted to dubbing and blurs rather than pay licensing fees.

But why did executives not acquire broader licensing deals to the music used in films and television? The answer lies with the technology and markets that existed at the time creators produced their works. Executives didn’t foresee the upcoming DVD revolution and securing broader licensing rights would have cost more. Many felt it was simply an unnecessary expense years ago. The sale of VHS tapes, laser discs, and other home video media was just not that profitable. It was only with the coming of DVD’s that things changed and distributing films and TV shows for home use became a booming business. Copyright owners naturally want a slice of the profits networks and studios make in releasing DVD’s, but sometimes demand exorbitant fees for music licenses. Networks and studios instead often choose to dub over songs and blur images to avoid these fees and any potential copyright infringement. This happens either because music licensing fees would be greater than any profit on selling the DVD’s, or simply because they want to keep all of the profit.

As these cases illustrate (and anyone familiar with George’s Lucas’ foresight to acquire licensing rights to sell Star Wars merchandise), the extent of licensing rights can have a huge impact on money changing hands. Keeping this in mind, what future issues do you predict could occur with copyright, technological advances, and artistic productions?

– Ari Good, Esq.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A. Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993. He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida. Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.