Guide Through the Legal Jungle

President Obama on Billboard – Why It’s Not Legal

At the White House’s request, the Weatherproof Garment Company has agreed to remove the Times Square billboard showing President Obama wearing a coat manufactured by the company. The picture of President Obama was taken during his November trip to the Great Wall of China. You can see the controversial billboard here.

When Are Images of Public Figures Okay?

It is permissible to use a public figure or celebrity’s image in an editorial context. That’s why we see images of public figures and celebrities in the news. It’s also permissible to use images of famous people in other non-commercial contexts. For example, artist Rick Rush’s limited edition print, The Masters of Augusta, featuring Tiger Woods historical victory at the 1997 Masters Tournament is a use of Tiger Woods’ image that is legal and is protected by the First Amendment – even though Tiger Woods did not consent to the depiction.

When Are Images of Public Figures Not Okay?

In contrast, using the image of a public figure or celebrity in an advertisement without consent is a violation of the person’s right of publicity. The right of publicity allows each individual to control and profit from the commercial value of his or her own identity. In my mind, the Weatherproof Garment ad is clearly commercial. Lucky for the Weatherproof Garment Company that President Obama is quite busy at the moment and has little free time to initiate a lawsuit.

My Personal Query about Times Square BillBoards

What is the deal with these Times Square billboards anyway? They seem to be a magnet for infringing advertisements. See my previous blog postings about the Naked Cowboy M&M billboard at Times Square and the Woody Allen American Apparel billboard (perhaps not right in Times Square but definitely in NYC).

What Does It Mean to Clear Rights?

Clearing rights is an activity conducted by authors, visual artists, musicians, website owners, and film and television producers. Rights clearance issues have even led to embarrassing situations for some well-known politicians.

When you clear rights, you verify that there’s no material in your production that is going to get you sued or prevent distribution of your production. There are other terms used to describe the process of clearing rights. Those terms include vetting the production, getting permission, and licensing.

Even though the process can sometimes be frustrating and time-consuming, there are at least five good reasons why you should clear rights properly. Clearing rights properly involves considering copyright, trademark, privacy, publicity, defamation, and other laws. There are many questions you might ask yourself as you clear rights in your production. Here are a few of them (with links to some blog postings on subjects related to those questions) :

• Can your production mention or feature brand-named products?
  
• Can you mention real people or real events?
  
• Do you need to clear the title of your production?
  
• Do you need a personal release for those appearing in your production?
  
• When you obtain permission, do you need a formal written agreement or can you use a more informal method?
  
• When and how can you quote from text?
  

For more detailed information on rights clearance, I recommend my book, The Permission Seeker’s Guide Through the Legal Jungle: Clearing Copyrights, Trademarks and Other Rights for Entertainment and Media Productions.

How the Ellen DeGeneres Show Rolls – An Example of Song Licenses Versus Sound Recording Licenses

If you watch the Ellen DeGeneres Show, you know that popular music plays an important role in the daily talk show. Ellen regularly dances from one set to another after her opening monologue. It turns out that the Ellen DeGeneres Show has not properly licensed the music, according to a lawsuit initiated earlier this month by the major record labels.

The lawsuit is a good example of one’s obligations to license the song versus one’s obligations to license the sound recordings. I often refer to understanding the song-sound recording distinction as step number one to understanding the music business. The pending lawsuit is all about sound recordings.

Licenses in the Songs

The Ellen DeGeneres Show producers are not required to directly obtain licenses for use of the songs. This is because license fees owed for songs should be paid through the agreements the television stations that broadcast the Ellen DeGeneres Show have with the performing rights organizations – ASCAP, BMI and SESAC.

Licenses in the Sound Recordings

The show’s producers are responsible for getting licenses from labels if they want to use recordings. These are the licenses the producers have neglected to obtain. According to the complaint, when asked why they had failed to get licenses for the use of the sound recordings, the show’s representatives responded that they “did not roll that way”. Not the wisest response.

I predict a quick settlement with the Ellen DeGeneres Show paying license fees that are somewhat higher than fees they would have paid had they properly licensed the material.

Lawsuit Targets Lyric Download Sites

On August 24, 2009, several music publishers filed a copyright infringement lawsuit against LiveUniverse Inc., which operates LyricsDownload.com, CompleteAlbumLyrics.com, and lyricsandsongs.com, and Motive Force, which operates LyricWiki.org. Reportedly, this is the first lawsuit filed by music publishers for digital piracy of song lyrics.

Does the Music Industry Have a Legitimate Claim?

Yes! Posting and distributing lyrics without permission can be copyright infringement – as I explained in a previous blog post entitled Can You Post Lyrics on Your Website? A Few Services that Make It Legal. While quotes of a few lyrics on a fan site or music-related site might in certain circumstances qualify as a fair use or alternatively might escape the attention of music publishers, music publishers have recently taken action to clamp down on large-scale unauthorized distribution of song lyrics.

According to the complaint, LiveUniverse and Motive Force display lyrics on their own sites, distribute lyrics to other websites, and encourage their online visitors to upload additional lyrics. While neither LiveUniverse nor Motive Force charge for the distribution of lyrics, each monetizes the unauthorized lyrics by selling advertising on their respective websites.

Predictions

If the allegations in the music publishers’ complaint are true, I predict (i) LiveUniverse and Motive Force quickly signing up for licenses from the publishers or (ii) an eventual shutdown of the LiveUniverse and Motive Force lyric download sites. Music publishers participating in the lawsuit include Peermusic, Warner/Chappell, Bug Music, Inc., Windswept Holdings LLC and Hitco Music Publishing.

My Recent Experiences with the Copyright Registration Backlog

A recent Washington Post article reported that the Copyright Office is experiencing a sixteen-month backlog in processing copyright registration applications. The backlog is attributed to growing pains as the Copyright Office transitions from a registration process in which it accepted hard copy paper applications to a registration process in which the Copyright Office encourages applicants to file electronically.

My Own Recent Experiences with Copyright Registration Processing

In Winter 2008, I prepared and filed two separate copyright registration applications on behalf of clients. This was prior to the broad availability of the Copyright Office’s electronic registration system so I filed hard copy paper applications.

The First Application. The first was a simple registration of a direct-to-dvd film production. I received the copyright registration certificate for the dvd in July 2008. That was about six months after the filing date which is the processing time one normally expects of the Copyright Office.

The Second Application. The second was a registration for a website and was a bit more complicated. To minimize copyright registration applications and filing fees for the client, I filed the website copyright registration application as a group registration for an automated database. If your website qualifies as an automated database, you can file all updates from a three-month period on a single application for one filing fee. Normally, registration covers the website only as it existed on the registration date. That means registration of later revisions to your website normally requires an additional application and an additional registration fee.

I received the registration certificate for the website just last week! Seventeen months after the filing date! Whew!

Here’s the Good News

Here are two note-worthy points the Washington Post article did not make explicitly clear:

First Point. Registration with the Copyright Office is not required to have a valid copyright in your work. Under current law, you have a valid copyright as soon as you create your work and fix in a tangible medium of expression meaning you have to write it down, record it, or save it to a computer file. While registration is not required, it does provide a number of benefits that help you maximize the protection in your work.

Second Point. Even though it may take the Copyright Office six to eighteen months to process your application, your registration is effective as of the filing date.

Making Money From Your Songs. Part Four. Music Publishing Issues for Bands.

This is the fourth and final part of my blog posting series on “Making Money From Your Songs”. Part One explains "What Is Music Publishing", Part Two discusses “Forming a Music Publishing Company”, and Part Three discusses the basic principles of "Joint Ownership of Songs".

Who Owns a Song Co-Written by Band Members?

If you’re in a band and you bring a song to the band that you have written completely on your own, you are clearly the owner of the copyright in the song. Even if another band member writes a new musical arrangement of the song or writes the part for his particular instrument, you are still the copyright owner of the song. However, when another member does more than just a bit of tweaking – such as writing a new hook or providing lyrics – your band mate arguably becomes a co-writer, and thus a co or joint owner, of the song.

Should All Band Members Have an Ownership Interest in Band Songs?

Some bands decide to share the copyright in the songs and all music publishing income – regardless of which band member writes the songs. Many music industry professionals disagree with this approach.

While one for all and all for one is a great band motto, you need to factor in that the copyright in your songs – and the corresponding opportunity to derive money from your songs – lasts for your lifetime plus seventy years. That’s longer than your band is going to be together. The copyright in your song can be passed onto your heirs. Think about if sharing all the publishing income from your songs is something you want to do even after your band is no longer together.

One Fair Alternative to Perpetual Joint Ownership of Band Songs

One alternative is having the songwriters hold onto the copyright in their songs but allowing all the band members to share in publishing revenue during the life of the band and perhaps for a set period thereafter. That way, the writers preserve their interest in what could become a very valuable property and the other band members receive some compensation for their role in the song’s success. For this structure to work, you need a very clear understanding of music publishing and a written agreement – preferably one that is written or at least reviewed by a knowledgeable music attorney.

Making Money From Your Songs. Part Three. Joint Ownership of Songs.

This is Part Three of my blog posting series on “Making Money From Your Songs”. Part One explains "What Is Music Publishing" and Part Two discusses “Forming a Music Publishing Company”.

Determining who holds an interest in music publishing interest can become more complicated if you collaborate on your songs or you perform with a band.

Basics of Joint Copyright Ownership in Songs

Each person who collaborates on a song becomes an equal joint owner of that song – unless there is a written agreement stating otherwise. For example, if there are two songwriters, each will own one-half of the entire song. If there are three songwriters, each will own one third of the entire song, and so on.

Note that even if one person writes the lyrics and another writes the melody, there’s not a separate copyright in the lyrics and a separate copyright in the melody. Instead, there’s one copyright in the entire song and each person who contributes owns an equal portion – unless once again there’s a written agreement that says otherwise.

What Joint Copyright Ownership Means in Practical Terms

As a co-owner, you have authorization to grant a non-exclusive license in the song. You don’t need the permission of your co-owners; however, you must give your co-owners their proportionate share of any revenue you make from the song. That means that each songwriter could potentially administer his portion of the song through his own music publishing company.

This has the potential of creating a logistical problem in the event someone wants an exclusive license in your song because all songwriters must agree to an exclusive license. Granting an exclusive license means that you can’t grant the same rights in the song to someone else. For example, a producer of a television commercial who wants to use your song might ask that the song not be licensed for use in any other advertisement.

Making Money From Your Songs. Part Two. Forming A Music Publishing Company.

This is Part Two of my blog posting series on “Making Money From Your Songs”. Part One explains What Is Music Publishing.

While some songwriters use a music publishing company to exploit their songs, others choose to handle their own music publishing. There are pros and cons on both sides of the issue. One advantage to acting as your own music publisher is keeping all of the income generated from your songs. Music publishing companies typically keep fifty percent of your songwriting revenue in return for helping you promote your songs. The disadvantages to handling your own publishing include foregoing the advance or upfront money normally paid by a music publisher. You’ll also be solely responsible for promoting your songs and handling all the administrative paperwork that goes along with music publishing.

Your decision on whether to work with a music publishing company may ride on whether or not you’re a songwriter who also performs. If you plan to record and release the songs you write on your own CD, you may not need the promotional muscle of a music publishing company. However, if your goal is to get well-known artists to cover your songs or to place your songs in film and television, a well-connected, experienced music publisher can get those placements for you.

If you decide to handle your music publishing yourself, you’ll need to form a music publishing company. The first question is who should hold an interest in the publishing, and how the publishing company should be set up. If you’re an individual who writes all your songs on your own and who performs as a solo artist, the answer is simple. You’ll be the sole owner of your music publishing company – although you may choose to organize your publishing company as a corporation or limited liability company instead of as a sole proprietorship.

Determining who holds an interest in the publishing can become more complicated if you collaborate on your songs or you perform with a band. I’ll address that issue in my next blog posting.

Making Money From Your Songs. Part One. What Is Music Publishing?

Exploitation is often used as a reference to the process of generating revenue from your songs and sound recordings. So where do you start in your efforts to make money from your music?

First, realize that there is a distinction between a song, which consists of the underlying melody and lyrics, and the recorded performance of a song. Each is a separate copyrighted work. Typically, each copyright is owned by a separate person or entity. Usually, the song is owned by the songwriter or the songwriter’s music publisher, and the sound recording is owned by the record company that released the CD. However, if you’re an unsigned artist making your own recordings, you’re most likely the copyright owner of both the song and the sound recording.

Being the copyright owner of a song or sound recording gives you certain exclusive rights. The exclusivity means that only you may exercise those rights, or authorize someone else to exercise those rights. You earn money from your songs by granting licenses to others to exercise those exclusive rights, and collecting the corresponding license income. This process of generating income from your songwriting is music publishing.

Europe May Forbid Photos of Your Home; US Law Does Not

Threats to Google’s Street View program illustrate how variations in international law can impact internet companies.

Street View, a 360-degree zoomable web application, allows you to use your computer to take a virtual tour of cities and towns and feel as though you are standing right on the streets of that city. Google gathers the pictures for Street View with vehicles driving on public roads and equipped with advanced imaging technology.

Google’s plans to expand Street View into European cities are encountering some bumps in the road. Germany threatened sanctions if Google failed to make some changes to the Street View program. Among other problems, Germany was most concerned with Google’s unauthorized filming of people’s residences and private property without their permission. Evidently that’s a no-no under German law. Directly across the pond, Beatle Paul McCartney joined in on the Google bashing and demanded that his London mansion be removed from Street View’s UK application. News reports indicated that Google complied with McCartney’s demand.

Don’t Try That In the United States

The European complaints about Street View remind me of a similar situation in the United States that generated a much different result. This U.S. situation focuses on singer/actress Barbara Streisand.

The California Coastal Records Project offers 12,000 aerial views and frames of the California coastline. After discovering that a single frame included her Malibu estate, Barbara Streisand sued claiming that the inclusion of her home in the photo invaded her privacy, violated California’s "anti-paparazzi" statute, and threatened her security. Not only was Streisand’s lawsuit dismissed on an anti-SLAPP motion, she was also ordered to reimburse California Coastal Records and other defendants $177,107.54 for their legal fees and her actions were extensively ridiculed in the media.