Tuesday, July 19, 2016

COLLABORATION AGREEMENTS FOR AUTHORS AND FILM/TV WRITERS: WHAT THEY MEAN AND HOW THEY WORK

            Under the US copyright law, although ideas alone are not protectable, an author or creator owns a copyright in his or her work the moment the author’s expression of the idea is 'fixed in a tangible medium' (i.e., when the expression of an idea is written down or recorded in some manner). Once created, a copyright extends for the life of the author plus 70 years, and in the case of collaborators on a copyright it extends for the life of the last surviving collaborator plus 70 years.

            This article will focus on the collaboration between and among creators of books, stories, theatrical plays and television shows. The essence of collaboration is working together to create a single work regardless of how or what each party contributes. Collaborators may work together in the same room at the same time, or not. The creative contribution of each co-author may be equal in quality or quantity, or not. Both authors may work together on the total work, or each might write separate chapters or scenes (or with a book or audio/visual production one might write words or dialogue while the other is an artist doing graphics and illustrations, etc.)  The long history of collaboration has shown that there are endless combinations. Co-authors do not need to have a written agreement concerning their joint work, but it is probably a good idea to do so given the myriad issues that can arise and become a problem under such circumstances.

            Co-authors can divide copyright ownership in whatever proportion they determine and that ownership concerns both rights (ownership and control) and revenues (income generated from the work). In the absence of a written agreement, under current case law concerning both copyright and partnership law, two or more collaborators are generally deemed to share equally on a pro-rata basis. This might be so even if it is clear that the contributions of the authors were not equal since the Courts generally prefer not to make decisions about the value of each author’s contribution to a copyright and simply divide it by the number of authors (and we probably prefer that Courts not be making decisions about whether the writing in one scene or a particular chapter has more or less value than that of another, etc.). Therefore, without a written agreement two authors would be deemed to own the song fifty-fifty, three writers one-third each, etc.

            Beyond the issue of just dividing the income, there arises the issue of copyright ownership and control. In the absence of a written collaboration agreement or other contract stating otherwise, each author retains control over its respective share of the copyright. In this way each writer retains some control over what happens with the work, the scope of any uses, contracts or licenses and how much is charged. Under US copyright law, co-authorship is akin to partnership and each joint copyright owner can exploit the work and also grant non-exclusive licenses to third parties, subject to the duty to account to the co-authors for any money that is generated.

            Another important question that can arise is what happens if two or more authors start to collaborate on a work and then one leaves before the work is completed. This can raise complex legal issues concerning whether the contribution of the departing author is copyrightable and whether the parties had a clear intent to work together to create an indivisible copyrighted work. There have been cases that have addressed this situation with differing outcomes depending on different circumstances. In one case, one party had the idea for the play and engaged another party to do more of the actual writing. There was no written agreement, and the parties had a dispute about the direction of the project. The idea party departed and the writing party continued on to complete and produce the work. Later, the departing party sued claiming authorship and co-ownership of the copyright in the work.  In this particular case, the Court determined that, since ideas alone are not protectable under copyright law, only the expression of the idea was subject to copyright, therefore, only the writing party had ownership. The departing party had proposed the original idea for the project and had made suggestions along the way but the contributions were insufficient to create copyrightable material. Therefore, since there was no written agreement to indicate otherwise, the Court determined that only the writing party had an ownership interest in the copyright to the work that the parties had started together. 

            All of these issues can be addressed in a written collaboration agreement. There are endless variations depending on the circumstances. A collaboration agreement can be as simple as a pie chart drawing made on a napkin at the dinner after the writing session, or as complicated as a writer’s publishing company or TV/film production company dictates that it be.

            At the end of the day, if you believe in yourself and your talents, give yourself the benefit of the doubt and invest in good legal representation - all the successful creators do. Your lawyer can create a fair collaboration agreement for you to use or 'translate' the documentation presented to you and explain its terms and then help negotiate more favorable terms for you as appropriate. My advice: never sign anything - other than an autograph - without having your lawyer review it first.



Wallace Collins is an entertainment lawyer and intellectual property attorney with more than 30 years of experience. He was a recording artist for Epic Records before receiving   his law degree from Fordham Law School. T: (212) 661-3656; www.wallacecollins.com 

Friday, July 8, 2016

URGENT NOTICE: Department Of Justice Deals Devastating Blow to America's Songwriters

The NMPA and other songwriter and music publisher organizations have come out strongly against the recent decision by the Department of Justice ("DOJ") which dealt a massive blow to America’s songwriters. After a two year review of the consent decrees that govern ASCAP and BMI, career lawyers who were never elected nor confirmed to their positions, led by a lawyer who previously worked with Google, determined that songwriters should have even fewer rights, less control over their intellectual property and be treated more unfairly than they already are being treated. The DOJ ignored the voices of copyright experts, members of Congress and thousands of songwriters and delivered a huge gift to tech companies who already benefit from egregiously low rates.

When the DOJ began its review of the consent decrees, songwriters and publishers hoped for updated modifications and relief in the face of dramatic market changes to performance rights licensing which made it clear that fair royalty rates were not being paid. At best, the songwriting community had hoped that the WWII-era decrees would be done away with to permit songwriters the same freedom to license works as other property owners enjoy in America. At worst, the decrees would be updated to reflect the current digital marketplace and give songwriters and publishers more flexibility to negotiate market-driven rates with global digital services. The existing consent decrees were put in place before the transistor radio was invented. They were never meant to, nor could they envision, existing in a world of iPhones, streaming and instant access to practically all music. Unfortunately, the DOJ went in the opposite direction and chose the outcome most harmful to songwriters and the creative community.

Not only did the DOJ decide that no changes will be made to the current decrees, they also now interpret those decrees to demand that all works must be licensed on a 100 percent basis (which means that the traditional and logical practice of fractional licensing - or licensing only the share of a song a PRO represents - by ASCAP and BMI will be done away with completely).

As the NMPA's David Israelite pointed out, regardless of how one feels about the profession of songwriting and the innate right a creator has to control their creation, any legal body should be deferential to the office created to examine and advise on copyright law. That body, the U.S. Copyright Office, was asked to weigh in on the DOJ’s proposed changes, and said that, “an interpretation of the consent decrees that would require these PROs to engage in 100-percent licensing presents a host of legal and policy concerns. Such an approach would seemingly vitiate important principles of copyright law, interfere with creative collaborations among songwriters, negate private contracts, and impermissibly expand the reach of the consent decrees.” The defiance displayed by these career antitrust lawyers in ignoring the legal opinion of the Register of Copyright is shocking.

In addition to disregarding the Copyright Office, the manner in which the decision was made and delivered was insulting to those most invested in the futures of songwriters. Members of Congress who had expressed interest in knowing the outcome of the review were apparently caught off guard and not given any chance to appeal to the DOJ - they were simply alerted that a determination had been made and given no recourse to reason with the DOJ.

Congressman Doug Collins of Georgia’s office said that the DOJ “sent an email to Congressional staff assuring that the review was not complete and that parties and stakeholders would have a chance to provide their views before the review was completed. However, reports from the meeting and DOJ’s own positioning appear to indicate that DOJ has already determined what direction they will take.” Additionally, Congressman Collins stated that the “Department of Justice’s position is arrogance at its worst.”

This move also threatens transparency because while songwriters may have chosen to join one PRO, now their payments may be coming from another. And if each PRO can license an entire song, even if it only controls a small portion of it, then licensees may have the ability to license where rates are lowest in a royalty race-to-the-bottom.

The DOJ does not have the protection of songwriters in their interest so the songwriting community needs to speak out loud and strong.  Public opinion is powerful and the antitrust attorneys at DOJ must understand that their decisions will have a ripple effect through the fields of creativity for decades. In the coming weeks and months, it will be more important than ever to express the problems associated with the DOJ’s declaration, which was conveniently disclosed just before the holiday weekend.

Washington bureaucrats should not be in the business of regulating music as they are neither capable of understanding nor fixing the problems they have created. Hopefully, the creative community's allies in Congress will work together with those most affected, the creators themselves, to navigate a workable path forward. Until then, there will be no justice for America’s songwriters.


Wallace Collins is an entertainment lawyer and intellectual property attorney with more than 30 years of experience. He was a recording artist for Epic Records before receiving   his law degree from Fordham Law School. T: (212) 661-3656; www.wallacecollins.com

URGENT NOTICE: Department Of Justice Deals Devastating Blow to America's Songwriters

The NMPA and other songwriter and music publisher organizations have come out strongly against the recent decision by the Department of Justice ("DOJ") which dealt a massive blow to America’s songwriters. After a two year review of the consent decrees that govern ASCAP and BMI, career lawyers who were never elected nor confirmed to their positions, led by a lawyer who previously worked with Google, determined that songwriters should have even fewer rights, less control over their intellectual property and be treated more unfairly than they already are being treated. The DOJ ignored the voices of copyright experts, members of Congress and thousands of songwriters and delivered a huge gift to tech companies who already benefit from egregiously low rates.

When the DOJ began its review of the consent decrees, songwriters and publishers hoped for updated modifications and relief in the face of dramatic market changes to performance rights licensing which made it clear that fair royalty rates were not being paid. At best, the songwriting community had hoped that the WWII-era decrees would be done away with to permit songwriters the same freedom to license works as other property owners enjoy in America. At worst, the decrees would be updated to reflect the current digital marketplace and give songwriters and publishers more flexibility to negotiate market-driven rates with global digital services. The existing consent decrees were put in place before the transistor radio was invented. They were never meant to, nor could they envision, existing in a world of iPhones, streaming and instant access to practically all music. Unfortunately, the DOJ went in the opposite direction and chose the outcome most harmful to songwriters and the creative community.

Not only did the DOJ decide that no changes will be made to the current decrees, they also now interpret those decrees to demand that all works must be licensed on a 100 percent basis (which means that the traditional and logical practice of fractional licensing - or licensing only the share of a song a PRO represents - by ASCAP and BMI will be done away with completely).

As the NMPA's David Israelite pointed out, regardless of how one feels about the profession of songwriting and the innate right a creator has to control their creation, any legal body should be deferential to the office created to examine and advise on copyright law. That body, the U.S. Copyright Office, was asked to weigh in on the DOJ’s proposed changes, and said that, “an interpretation of the consent decrees that would require these PROs to engage in 100-percent licensing presents a host of legal and policy concerns. Such an approach would seemingly vitiate important principles of copyright law, interfere with creative collaborations among songwriters, negate private contracts, and impermissibly expand the reach of the consent decrees.” The defiance displayed by these career antitrust lawyers in ignoring the legal opinion of the Register of Copyright is shocking.

In addition to disregarding the Copyright Office, the manner in which the decision was made and delivered was insulting to those most invested in the futures of songwriters. Members of Congress who had expressed interest in knowing the outcome of the review were apparently caught off guard and not given any chance to appeal to the DOJ - they were simply alerted that a determination had been made and given no recourse to reason with the DOJ.

Congressman Doug Collins of Georgia’s office said that the DOJ “sent an email to Congressional staff assuring that the review was not complete and that parties and stakeholders would have a chance to provide their views before the review was completed. However, reports from the meeting and DOJ’s own positioning appear to indicate that DOJ has already determined what direction they will take.” Additionally, Congressman Collins stated that the “Department of Justice’s position is arrogance at its worst.”

This move also threatens transparency because while songwriters may have chosen to join one PRO, now their payments may be coming from another. And if each PRO can license an entire song, even if it only controls a small portion of it, then licensees may have the ability to license where rates are lowest in a royalty race-to-the-bottom.

The DOJ does not have the protection of songwriters in their interest so the songwriting community needs to speak out loud and strong.  Public opinion is powerful and the antitrust attorneys at DOJ must understand that their decisions will have a ripple effect through the fields of creativity for decades. In the coming weeks and months, it will be more important than ever to express the problems associated with the DOJ’s declaration, which was conveniently disclosed just before the holiday weekend.

Washington bureaucrats should not be in the business of regulating music as they are neither capable of understanding nor fixing the problems they have created. Hopefully, the creative community's allies in Congress will work together with those most affected, the creators themselves, to navigate a workable path forward. Until then, there will be no justice for America’s songwriters.