FILM & TELEVISION WRITER COLLABORATION AGREEMENTS: 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 TV shows, movie scripts, books and theatrical plays. The essence of collaboration is the creators 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 in the case of 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 the rights (i.e., ownership and control) and the revenues (i.e, 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 pro rata 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 law whereby 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 departs 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 fact-specific 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 that 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 copyright 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 over coffee at the diner 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 your lawyer can '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. He was a songwriter and recording artist for Epic Records before receiving his law degree from Fordham Law School. T: (212) 661-3656; wallacecollins@gmail.com; www.wallacecollins.com 

Thinking Out Loud about the Blurred Lines in Current Copyright Law

As a copyright lawyer, my opinion is that the "Blurred Lines" decision should have been overturned on appeal. However, the more recent victory for Ed Sheeran in the "Thinking Out Loud" copyright case probably has the same net effect, and will mute the prospective ramifications of the "Blurred Lines" decision.

The genre or musical style of a song is not specifically protectable under the language of the copyright statute nor the relevant case law. In most cases, the lyrics and the melody are what is at issue, and whether there was copying or substantial similarity between the lyrics or melody of one song and the other. However, that was not the allegation in the "Blurred Lines" case. The essence of the claim was that defendants copied the groove and style of the Marvin Gaye song "Got To Give It Up" when they created "Blurred Lines", and I did not believe that the jury's decision should be upheld on appeal as a matter of copyright law.

In modern popular music it is understandable that current artists are effectively midgets standing on the shoulders of giants in order to reach new heights... and some similarities are bound to appear in the new works so created. However, when it comes to the particulars and technicalities of copyright law, emotions (particularly envy and jealousy) are usually not well-suited to reaching a correct resolution (and that applies to the jury as well as to the many pundit opinions that proliferated after the Blurred Lines decision).

Prior to the Ed Sheeran "Thinking Out Loud" decision, my research indicated that the "Blurred Lines" case was the only copyright infringement lawsuit in which no specific melody or lyrics were alleged to have been copied. The apparent 'that songs reminds me of another song' threshold suggested by the "Blurred Lines" jury decision could potentially have established a new legal standard. If that was the new threshold for copyright infringement, a lot of modern artists as well as 60's British artists (from the Beatles on across the spectrum) could have been in legal trouble. The floodgates for such litigation could have been flung open.

For now, however, it appears Ed Sheeran's "Thinking Out Loud" case will mute the effect of the "Blurred Lines" decision and hold back what could have been a flood of potential lawsuits - at least for now.

Wallace Collins is an entertainment lawyer handling contract negotiation and general copyright and trademark law matters in the music, film, television, book, fine arts and technology areas. He was a songwriter and recording artist for Epic Records before graduating from Fordham Law School. T: (212) 661-3656; wallacecollins@gmail.com; www.wallacecollins.com 

D.I.Y. v. GETTING SIGNED TO A MAJOR RECORD LABEL IN THE CURRENT SOCIAL MEDIA ERA

The question these days for musical performing artists seems to be whether it is better to do it yourself ("DIY") or sign with a major record company. The answer is: it depends.

It used to be, back in the 1970s, '80s, '90s and even into the start of the new millennium, that the major record companies had talent scouts scouring the country and searching the clubs for talent. There were layers of A&R staff at major labels (A&R stands for “artist and repertoire”) who were often producers that would take artists into studios and make recordings. That way a record label could find out what an artist might sound like on record before proceeding further. The A&R staff would also review songs from publishers and songwriters to choose “hits” for the artists already signed to the label to record. Sometimes artist managers and lawyers would pitch talent to the A&R personnel, a process which was commonly referred to as “shopping” an artist to a label. For the most part, those days are done.

These days the A&R staff could more accurately be referred to as R&D (research and development). They no longer need to scour the clubs or take demos shopped to them by managers and lawyers. Artists can make state of the art recordings in their homes and distribute it digitally with the push of a button. The labels can search the internet and websites like TikTok and YouTube to see what artists are garnering interest from the public. These days, a new artist's mission is more about creating a “buzz” with an online presence and doing live shows to build a fan following. The record companies are interested in analyzing data before they take an interest in investing time and money in a project.

The major labels are now less about finding and developing raw talent and more about marketing and promoting the artists that have developed themselves and built the widest public appeal. Rather than bring new artists into the studio to work with them, the labels tend to find artists that are already performing live and drawing crowds, and already have at least some recordings commercially released and available online. Since an artist can create good quality recordings in a home studio, and easily upload music for commercial release through any number of online distributors, any artist can make music and get it out to the public without the need for a major record label’s assistance. The labels actually want the DIY artist to develop its sound and test market itself. When there is interest from the public, voluminous hits on an artist’s website or YouTube video, substantial sales of the artist’s music, and long lines at the live shows, then the major labels start sniffing around. The contractual downside of signing with a major record company is that in most cases their contracts assign ownership of your copyrights to the company in exchange for funding (an advance and a promise of royalties); the DIY artist can retain ownership of its copyrights and then use and exploit them to generate income.

On the up side, as an independent artist these days you can make and distribute your own recordings online through the digital streaming services and promote the music through social media and with live performances - and keep 100% of the copyrights and 100% of the profits. In the "good old days" an artist needed a record company to fund the recordings in state-of-the-art recording studios and then print, warehouse and ship the physical records to brick and mortar stores. Before Spotify, AppleMusic and other digital streaming services, radio was the only gateway to the public, and you needed a record company to market and promote the music to radio. You no longer need to go that route. You can do it yourself if you prefer.

If the DIY route is not for you, then you still need to do some legwork to get the attention of a major record company. What you, as an artist, need to do, first and foremost, is work on your art. That can be a combination of writing great songs, making great recordings, making interesting videos and creating a great live show – any and all of those things. You need to build your websites and develop your social media in order to link your fans to your work so that the public can hear your music and see your performances. An artist needs to create a “buzz”, create excitement and interest for what the artist is doing creatively. Some artists do it with a killer song and others do it with an interesting video. You need to create something unique and interesting that the public just cannot resist. It is not easy. It takes hard work and perseverance – and requires a little luck to get attention. However, if the alternative is to give up and go work in a grocery store or some other day job, then you might as well hone your craft and give it all you have to try to create something that demands that people pay attention. Then, if you want, you will get signed to a major record company that will, hopefully, help fund your expanding efforts and spread your artistry to a broader audience around the world.

Wallace Collins is an entertainment lawyer handling contract negotiation and general copyright and trademark law matters in the music, film, television, book, fine arts and technology areas. He was a songwriter and recording artist for Epic Records before graduating from Fordham Law School. T: (212) 661-3656; www.wallacecollins.com 

USE OF "SAMPLES" FROM PRE-EXISTING RECORDINGS STILL NEED TO BE PROPERLY CLEARED TO AVOID COPYRIGHT INFRINGEMENT

Many clients still ask about whether or not they can "sample" from an existing sound recording and how much is permissible to use, and whether or not they need permission to embody a sample in their new sound recording.

Sampling occurs when a portion of a prior sound recording or fixation of sound is incorporated into a new sound recording. When such a use occurs two copyrights are involved: the copyright in the sound recording and in the underlying musical composition embodied in such recording (i.e., the song). If sampling occurs without permission, copyright infringement of both the sound recording (usually owned by the record company and/or artist) and the song (usually owned by the publishing company and/or songwriter) has occurred.

 

In order to legally use a sample, you need to contact both the owner of the sound recording and the copyright owner of the underlying musical work for permission. License fees for sampling vary greatly and depend on how much of the sample you intend to use, the perceived value of the recording you intend to sample from, and the intended use of the sample in your song. Licenses can be granted "gratis" but usually there is a fee which is either a percentage of the record royalties and/or the mechanical royalties or for a flat fee paid upon execution of the sample license agreement (or a combination of both). There are no statutorily mandated rates for samples so the copyright owner can charge whatever the copyright owner wants to charge and does not have to grant permission to use his work at all.

  

Using samples without permission can lead to litigation where an infringer may be forced to pay damages to the copyright owner which could amount to hundreds of thousands of dollars per infringement. A court can also order you to recall and destroy all of your infringing copies and, in certain cases, can award the costs and legal fees incurred by the prevailing party in such a lawsuit.

  

Although the "2 Live Crew"/"Pretty Woman" infringement case turned on the issue of "fair use", I do not recommend to clients that they try to rely on that copyright law doctrine when they want to use a sample in their work. And the idea that you can use a certain number of notes or seconds of someone's song without penalty is a myth. 

One other issue is what is known as "interpolation" which refers to using a melody - or portions of a melody - from a previously recorded song, but re-recording it instead of sampling the original. Interpolation is used when the artist or label who owns the sound recording declines to license the sample or if licensing the sample is considered too costly. Unfortnately, this work around avoids using the sound recording copyright but may still implicate the underlying song copyright. In many cases, similar to samples, interpolations may infringe a copyright owner's exclusive rights in the song. However, unlike samples, since interpolations only implicate the preexisting musical composition then only a license from the musical work's copyright owner may be necessary.

Bottom line: the only proper way to use a sample of a prior recording in your recording is to get permission. 

Wallace E.J. Collins III is an entertainment and intellectual property lawyer based in New York. He was a teenage recording artist for Epic Records before receiving his law degree from Fordham Law School. Tel: (212) 661-3656; www.wallacecollins.com 

BEWARE: ARTIFICIAL INTELLIGENCE POSES A THREAT TO ARTISTIC CREATIVITY AND A POTENTIAL COPYRIGHT INFRINGEMENT NIGHTMARE!

The headlines these days are full of stories about artificial intelligence (“AI”). It seems AI has gone from science fiction to reality in a very short period of time. From Open AI’s ChatGPT app to Google’s MusicLM music creation tool, the future is now. A few decades back the struggle over digital rights and copyrights was a sideshow, of concern only to a relatively small slice of the population. Now, however, everyone is online, which means that even if you don’t consider yourself a creator as such, material you write, post or share could become part of an AI engine and used in ways you never imagined. To wit, several of my clients have recently raised concerns about the threat of AI, and the threat AI may pose to authors, artists (both fine and graphic artists) as well as songwriters and musicians… so let me try to break it down.

The tech behind AI is a complicated, but at its most basic AI engines ingest massive data sets, which they then use to train software that can make recommendations or even generate code, art, or text. Sometimes the engines are scouring the web for these data sets so they can learn what is on a webpage and catalog it for search queries; other times, AI engines have access to huge proprietary data sets built in part by the text, photos, and videos users have posted on their respective platforms. Unlike the music piracy lawsuits of decades ago, the AI engines are not making copies of the data they use and distributing them under the same name. The legal issues, for now, tend to be about how the data got into the engines in the first place and who has the right to use that data.

AI proponents argue that AI engines can learn from existing data sets without permission because there is no law against learning, and that turning one set of data into something entirely different is protected by the law, as affirmed by a lengthy court fight that Google won against authors and publishers who sued the company over its book index, which cataloged and excerpted a huge swath of books. Those against AI argue that if AI is going to use original material created by others then the AI engines should get a license from the original author or creator, or from whoever owns the copyright. Otherwise, the AI engines are violating the rights of the authors and creators of the underlying materials and, even if the result is not an exact copy of the underlying work (think “sampling” in music), the resulting AI product would not exist “but for” the underlying work and the use of the AI work competes with the artists or creators’ ability to make a living.

As of now, the US Copyright Office has stated that it will not accept a copyright registration on any work of authorship created using AI. However, there is still the issue of whether the resulting AI creation infringes the copyrights of other authors when it incorporates the work of the original authors into a new AI work or some sort (regardless of how remote or miniscule the resulting use in the new AI-generated work). Using the MusicLM system as an example, the Google researchers noted that MusicLM did have a tendency to incorporate copyrighted material from training data into the generated songs. During an experiment, they found that about 1% of the music the MusicLM system generated was directly replicated from the songs on which it trained (a threshold apparently high enough to discourage them from releasing MusicLM to the public in its current state).

Assuming MusicLM or an AI system like it is one day made available, it seems inevitable that it will give rise to major legal issues, even if the systems are marketed as tools to assist artists rather than replace them. AI music generators violate music copyright by creating a mosaic of coherent audio from prior works they ingest in training, thereby infringing the US Copyright Act’s reproduction right. Similar concerns have been raised around the training data used in image, code and text-generating AI systems, which is often scoured from the web without creators’ knowledge. New works generated by an AI system would arguably be considered derivative works, in which case only the original elements of the AI-generated work would be protected by copyright (although it is unclear what might be considered “original” in such a context).

It might not be long before there is more clarity on the matter. Several lawsuits are making their way through the courts which will likely have a bearing on music-generating AI, including one pertaining to the rights of artists whose work is used to train artificial intelligence systems without their knowledge or consent.

Current AI platforms are crude and imperfect, but by design AI improves and gets “smarter” the more it is used. AI may still be in the early horse & buggy stage - but AI could quickly advance to the Tesla level. Authors, creators and artists beware!

 

Wallace Collins is an entertainment lawyer and intellectual property attorney based in New York. He was a songwriter and recording artist for Epic Records before receiving his law degree from Fordham Law School. www.wallacecollins.com 

 

 

BASIC LEGAL TIPS FOR RECORD PRODUCERS

     These days the recorded music business is producer-driven more so than ever before. Producers not only create the sound bed and make the singer or rapper sound great performing over it, but producers also discover and develop new talent. It is important as a record producer to understand that each situation is unique, and the relationship between the record producer and the artist varies greatly depending on the arrangement between the parties as well as the genre of music. Producers have traditionally been paid for their services as employees or as independent contractors and their contributions to the creation of the sound recording in the studio are generally contractually deemed to be a work-for-hire for the artist or record label under the copyright law. As such, the copyright in the sound recordings is owned by the artist or the record label.

     Sometimes a producer may be paid a flat fee for his services in the studio, but more frequently the producer is paid an amount that is deemed an advance against future producer royalties based on sales of the recordings. However, the paradigm keeps changing and has evolved over the years. Recorded music is more producer-driven than ever before. Producers now sometimes not only help capture the sound in the studio and use the available technology to mold the sound to be as commercially acceptable as possible, but more and more producers are finding and discovering new talent and developing the artist’s sound and even, in some cases, collaborating on the artist's sound as well as co-writing the songs.

     When dealing with recorded music there are two copyrights that may come into play under the copyright law: one in the sound recording and one in the underlying musical composition or song. Copyright vests in the creator as soon as the idea is “fixed in a tangible medium”, so as soon as the author writes it down or the creator records it the copyright is created. In general the creation of the sound recording in the studio is separate from the writing of the song. This is usually true in most cases (e.g., in the rock, country and folk genres) where the artist usually comes into the studio with the song already completed or taking shape and the producer will then just assist in creating a recording of the song. In other cases, however, the producer's involvement may cover both copyrights. For example, a producer may create the musical bed or track (often before any artist, singer or rapper is even involved) so he also becomes a songwriting collaborator with the artist who writes the lyric and performs the vocals in the recording studio. In such a situation, the producer and artist become joint owners not only in the copyright in the sound recording but also, by current custom in the industry, in the underlying musical composition. It is also true that in today's top pop music world many of the producers actually co-write the songs with the artists in the process of creating the hit record.

     It is generally standard operating procedure when dealing with an artist, particularly one signed to a major record label, for a producer to be asked to sign a contract to transfer any claim the producer might have in the sound recording copyright to the artist or the label in exchange for an advance and royalties. Producers generally earn revenues from advances and royalties paid for the sale of the sound recording (and may also earn mechanical royalties and performance monies under circumstances where the producer is also deemed a co-author of the musical composition). In addition, the producer should earn income from all use and exploitation of the record just as the artist does, whether from synchronization licenses for film, TV and video game use, but also from social media and from streaming services like YouTube and Spotify. In the absence of paperwork concerning the producer’s work in the studio and the producer’s share of income, then the producer and artist may be deemed to be joint owners of the sound recording copyright and the issue is then how to divide the revenues that may arise from the use and exploitation of the recording.

      Keep in mind that it may, in fact, be in your best interest to "get it in writing" if you have an arrangement with someone. This is especially true in collaborative situations. Otherwise, you run the risk of a disagreement later over the actual terms of the oral agreement, and it becomes your word against that of the other party. That is not to say that an oral agreement is not a binding contract, but a written contract is easier to prove if the terms of the arrangement are in a  signed writing. A simple contract should set forth the basic details of your arrangement (i.e., who is paying how much, and for what? advance/fee, royalty, producer credit, etc.) and then be signed by both parties to the agreement. 

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 producers do. Your lawyer can "translate" the deal and explain its terms to you, and then help negotiate more favorable terms for you as appropriate. My advice: never sign anything - other than an autograph - without having your entertainment lawyer review it first.

 

Wallace Collins is an entertainment and intellectual property lawyer. He was a recording artist for Epic Records before graduating Fordham Law School. Tel: (212) 661-3656; www.wallacecollins.com