Know Your Rights: A Guide for Photographers on Understanding Copyright and Intellectual Property Rights In Your Work

As a photographer, your work is your art, your business, and your livelihood. Whether you are a freelancer, a hobbyist selling your photos online, or a professional contracted for commercial projects, it is crucial to understand the legal protections afforded to you under copyright law. Having represented many photographs over the years in my law practice, in order to answer the most frequently asked questions, what follows is a basic outline of the key rights you should be aware of in order to protect your creative output.

1. You Own the Copyright the Moment You Take the Photograph

Under the U.S. Copyright Act (Title 17, U.S. Code), copyright protection exists from the moment the photograph is created in a fixed, tangible form - which means as soon as you take the photo and save it (digitally or otherwise), you are the copyright owner.

This gives you exclusive rights to:

• Reproduce the photograph
• Distribute copies
• Display the image publicly
• Create derivative works
• License the image to others

You do not have to register the photo with the U.S. Copyright Office to own the copyright. However, registration does provide additional rights and remedies, and is required if you want to commence legal action for infringement and collect statutory damages and attorney’s fees.

2. Work for Hire

Under certain circumstances, particularly if  you are employed by a company and take photos as part of your job duties, or you are contracted for a particular project, your employer - not you - likely owns the copyrights as a matter of “work for hire” under US copyright law.

For freelancers, a work for hire agreement must be in writing and fit into a narrow category of accepted works (e.g., a contribution to a collective work or part of a motion picture). If it does not meet these criteria then you retain copyright, even if someone else paid for the shoot (unless you assign it in writing).

Best Practice: Always use a written contract clearly stating whether the work is a work for hire or a licensed work where you retain the copyright.

3. Licensing: Control How Your Work Is Used

Licensing allows others to use your photos under your terms. Licenses can be:

• Exclusive or non-exclusive
• Limited by time, geography, or medium
• Royalty-free or rights-managed

Be specific in your contracts. For instance, if you license a photo for use in a print brochure, state whether digital use is also permitted. Ambiguity often leads to disputes.

4. Model Releases: When You Need Them

A copyright gives you the right to your image, but using identifiable people in commercial contexts may violate their right of publicity or privacy.

• Commercial use (advertising, product packaging): Requires a signed model release.
• Editorial use (news, commentary, art): Generally does not require a release.
• Stock photography: Most reputable agencies require model releases for any identifiable person in a commercially licensable image.

Best practice: Get signed model and property releases when possible - it protects you and increases your options for licensing.

5. Infringement: What If Someone Uses Your Work Without Permission?

If someone uses your photo without a license:

• Document the use (screenshots, URLs, dates).
• Determine if it’s a fair use (educational, commentary, etc.—consult a lawyer).
• Send a cease and desist letter or DMCA takedown notice.
• File a copyright infringement claim if needed (only possible if the work is registered).

If you filed a copyright registration on your work prior to the infringement then you are entitled to damages in an amount up to $150,000 per infringement plus legal fees. Without a copyright registration, you’re limited to actual damages and profits which you must prove at trial.

6. Protecting Your Work Online

• Use watermarks strategically.
• Embed metadata (EXIF/IPTC) with your name and contact info.
• Consider reverse image search tools (like Google Images) to monitor unauthorized use.
• Register your most valuable work with the Copyright Office - it’s affordable and powerful.

Final Thoughts

Photography is both an art and a business. By understanding your legal rights, you can control how your images are used, protect your creative investments, and take informed action against infringement. In most cases, it is best to try to memorialize get your arrangement in writing. Remember the importance of contracts, copyright registration, and proactive enforcement. When in doubt, consult a lawyer experienced in the area for legal advice.

 

Wallace Collins is an entertainment lawyer and intellectual property attorney based in New York with over 35 years’ experience in music, film, television and emerging technology, and he handles many current digital media matters including issues that arise with AI. He was a songwriter and recording artist for Epic Records before receiving his law degree from Fordham Law School.

Website: http://www.wallacecollins.com

 

Taylor Swift v. Donald Trump: AI Images and Legal Consequences

Taylor Swift clearly has credible causes of action against Donald Trump for his false and misleading social media posts. Donald Trump posted to his own Truth Social platform several AI-generated images which falsely suggested that Taylor Swift had endorsed him for president. The post contained several photographs showing women in t-shirts with the “Swifties for Trump” slogan printed on the front. Some of these photographs clearly appeared to have been generated by AI, including several originally posted by a satire website. However, the most prominent image showed Taylor Swift herself, dressed as Uncle Sam in the style of a World War II-era recruiting poster, bearing a clear message: “Taylor wants you to vote for Donald Trump.” At the top of the post, Trump himself responded to the apparent endorsement: “I accept!”

These photographs sparked understandable outrage among the legions of fans of the superstar who has long been an outspoken critic of the ex-president. Though she has not yet endorsed a candidate in 2024, Swift supported Joe Biden and running mate Kamala Harris in 2020, and Swift blasted Trump for “stoking the fires of white supremacy and racism” and urged her fans to vote him out of office

Trump's social media posts could give rise to numerous causes of action by Swift. On its face, Trump’s fake endorsement post most obviously violates Swift’s right of publicity, the legal power to control how your name, image and likeness is used by others. While the explosive growth of AI tools has made it easier to convincingly mimic real people, lawmakers have scrambled to empower individuals like Swift to better protect their right of publicity. The federal NO FAKES Act, currently under debate in Congress, would make it illegal to publish a “digital replica” of someone’s likeness without their express consent, including one's voice or image. Trump’s post, which showed a realistic, AI-generated replica of Swift’s image without her consent, would almost certainly violate that new federal law. However, even without the NO FAKES Act, states across the country already protect the right of publicity and would likely give Swift grounds to sue Trump and his campaign on that basis. A trademark infringement and false advertising claim under the Lanham Act would be another credible cause of action for Swift. She may also have a cause of action against Trump for defamation, alleging that the false presidential endorsement harms her reputation. However, such litigation could be costly and time-consuming, and Trump has potential defenses such as pointing the finger at those who originally created the images or arguing that his posts were free speech shielded by the First Amendment.

Rather than go down that long and winding litigation road, the best way for Taylor Swift to fight the false endorsement might not be in a court of law but in the court of public opinion. Swift should fight Trump’s fake endorsement with a legitimate endorsement of her own, broadcast across social media to her millions of faithful fans, many of whom are of voting age. That would be a remedy far beyond what any court could grant, and one that would likely hurt Trump far more than any Judge could do by issuing a legal ruling from the bench.

Wallace Collins is an entertainment lawyer and intellectual property attorney based in New York with over 30 years experience in music, film, television and emerging technology, and he handles many digital media matters including issues that arise with AI. He was a songwriter and recording artist for Epic Records before receiving his law degree from Fordham Law School. Website: http://www.wallacecollins.com

BEWARE: OpenAI's "Sora" Text-To-Video AI Model May Be The Most Dangerous Threat Yet!

Sora is an AI model from OpenAI that can create realistic video scenes from simple text instructions. As such, Sora is bound to raise a myriad of potential intellectual property issues as well as name and likeness and invasion of privacy issues depending on the extent to which it is exploited by the user.

OpenAI states that Sora can generate videos up to a minute long while maintaining visual quality and adherence to the user’s prompts. Sora is able to generate complex scenes with multiple characters, specific types of motion, and accurate details of the subject and background. The AI model can understand not only what the user has asked for in the prompt but also how those things exist in the physical world, and it has an understanding of language enabling it to accurately interpret prompts and generate compelling characters that express human emotions. Sora can also create multiple shots within a single generated video that accurately demonstrate and enhance characters and visual style. With all of the photos and information available on social media and the internet at Sora's disposal, the possibilities are endless. 

Most concerning is that, like ChatGPT and other AI applications, the more Sora is used to more it will learn, grow and advance to become better and smarter at production - so it seems inevitable that Sora will eventually have the ability to produce HD-quality and feature-length film productions.

For example, the user can write a sentence stating details such as "it was a dark and stormy night when through the foggy window of a castle we see a maniacal scientist flipping a switch to bring a robot to life" - and the more detailed the description the more detailed the video Sora can provide with photo-quality production. Initially this may appear innocuous enough enabling a parent to easily turn their child's playtime story into a video or allow a struggling screenwriter who might never otherwise get a film produced to use Sora to create a feature length film. However, as some commentators have pointed out, taking it a step further, a corporation might try to take an image of someone famous (or just anyone attractive they think might help sell their product), and then have Sora create a video commercial showing that person endorsing the product and promoting it. On the darker end, a co-worker could create a video of a fellow employee appearing to do all sorts of illicit activities and then anonymously bring it to the attention of the employer. Imagine the chaos that could be created in the political arena (as if there is not already enough confusion and misinformation in circulation). Or worse, imagine all of the carnal, erotic activities that could be generated by a user (or even a stalker) to make any person in their sights appear to be doing anything the user's imagination can conjure. 

AI has already disrupted copyright law norms for creators particularly in the music space, and has challenged established intellectual property concepts in the entertainment world and beyond. Sora would seem to be poised to expand those problems exponentially. Without some type of common sense regulations in place, whether from the government or the industry (or a combination thereof), Sora could be used by the most vile of individuals to create videos that could defile, mislead and scare people, or even instigate riots based on the appearance of something that is completely fabricated but entirely realistic in appearance. 

It might not be long before there is more clarity on the matter since lawsuits will inevitably make their way through the courts, and these cases may establish some parameters for the use of Sora. Like other current AI platforms, Sora is somewhat crude and imperfect, but by design AI improves and gets “smarter” the more it is used. Sora may still be in the early horse & buggy stage now, but it is quickly advancing to the Tesla level - at which point chaos is very likely to ensue. 

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 

UNDERSTANDING TERMINATION RIGHTS UNDER U.S. COPYRIGHT LAW

The 1976 Copyright Act provides for the termination of copyright transfers. It entitles content creators to reclaim their copyrights - regardless of any contract stating otherwise –after certain time periods. So, even if an author, artist, musician, photographer or songwriter signed a contract which purports to transfer all rights in a work for perpetuity, the Copyright Act provides that the author of the work (or the author's heirs) can terminate that grant and demand that the rights revert in a shorter period of time. Authors and creators are now entitled to terminate their contractual transfers and demand back control of their copyrights: authors can terminate their book publishing contracts, songwriters can demand return of their musical compositions from music publishers and recording artists and record producers can demand return of their sound recordings from the record companies.

Generally speaking, for copyright grants made on or after January 1, 1978 (the effective date of the 1976 Copyright Act) the termination period is 35 years under Section 203 of the Copyright Act. For pre-1978 works Section 304(c) of the Copyright Act, says that a copyright owner (or his or her heirs) can terminate all grants, licenses or transfers of beginning on the 56th year after that assignment was made. Termination may be exercised anytime during a 5 year period beginning at the end of either the 35 year or 56 year period from the execution of the grant (as applicable) or, if the pre-1978 grant concerns the right of publication of the work, then the period begins on the sooner of 35 years after publication or 40 years after execution of the grant. Although there are certain formalities which must be complied with to effectuate transfer, this essentially means that recording artists and songwriters were entitled to start exercising their right of termination on post-1978 works as of the start of 2013. 

The big exception to the termination right is if a work was done as a "work-for-hire.” Section 101 of the Copyright Act of 1976 delineates what types of works by their nature are incontestably works for hire. It is essentially a two part test: (1) was the work created by an employee within the scope of his or her employment, and; (2) if not, is it (a) one of the nine enumerated work-for-hire classes of works and (b) is there a written agreement signed by the author acknowledging the work for hire relationship. Included on the list of nine enumerated categories of works that are works for hire are collective works, compilations and motion pictures. Not included on this list are books, photographs, songs and sound recordings.

There are ongoing legal battles over how termination rights affect the book, comic book and motion picture fields. Not unexpectedly, the entertainment business companies are not pleased with the copyright termination provision and the inevitable ramifications thereof.

With respect to songs and music publishers, some litigation has already been decided. In Scorpio Music S.A. v. Willis (Case No. 11 CV 1557 (C.D. CA 2012), California Federal District Judge Moskowitz determined that original Village People member, Victor Willis, could terminate his transfers and recapture a direct copyright interest in many of his group's songs, including "YMCA." In this case, after Willis notified Scorpio that he was terminating the prior transfers, Scorpio sued arguing that Willis could not terminate because a majority of each song's authors had not also agreed to terminate their transfers. The court sided with Willis, ruling that an author can unilaterally terminate the transfer of his share in a copyrighted work without his co-writers.  Although the Scorpio decision addressed a fairly narrow point concerning multi-author transfers, the decision opens the way for most songwriters to get their composition copyrights returned and sets the stage for the bigger battles looming on the recorded music side of the business. The copyright termination procedures apply to the separate and equally lucrative sound recording copyrights transferred to record labels as part of typical recording artist contracts over the years. Since the term “sound recordings” is not explicitly contained in the enumerated work for hire category list, practitioners representing record companies will need to try to find other ways to justify any claim that sound recordings are indeed works for hire in order to preclude termination by artists.

The termination rights of the author or creator of a copyrighted work are generally subject to a 5 year window. Termination must be made effective within the termination window or the right to terminate the grant is forfeited. To be effective, the author must serve a written notice of termination on the original record company or publisher (and/or any successors) no more than 10 and no less than 2 years prior to the effective date stated in the notice. The notice of termination must state the effective date of termination. Perfection of the termination requires that a copy of the written notice also be filed with the U.S. Copyright Office prior to the effective date of termination.

Although the termination rights of an artist under the 1976 Copyright Act would only be effective for the U.S. territory, the size of the U.S. consumer market still makes this a valuable right to reclaim.            

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

Tel: (212) 661-3656;  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 

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 

 

 

SUPERSTAR CATALOG SALES OCCURING NOW ARE SUBJECT TO TERMINATION IN 35 YEARS!

      Under the 1976 Copyright Act, the length of copyright protection was extended for the life of the author plus 70 years. However, it also established a right for authors or their heirs to terminate copyright transfers after a certain period of time. In other words, even if an artist or songwriter signed a contract that purports to transfer all rights in a work in perpetuity, even if the artist or songwriter is “unrecouped”, the Copyright Act provides that the author can terminate that grant and demand that the rights revert in a shorter period of time. Recording artists and songwriters have been terminating their contractual transfers and demanding back control of their copyrights. As anyone reading the headlines is aware, numerous superstar artists and songwriters (e.g., Bob Dylan, Bruce Springsteen, Sting, etc.) have sold their entire catalogs to third parties for enormous sums. However, it does not appear that the 1976 Copyright Act sets forth any limit on how many times an author is entitled to terminate the transfer of copyrights – which would seem to indicate that 35 years from now these superstars (or, more likely, their heirs) will be entitled to again terminate the contractual transfer and regain the copyrights under Section 203 of the Copyright Act.

     Generally speaking under the Copyright Act, for copyright grants made on or after January 1, 1978 (the effective date of the 1976 Copyright Act) the termination period is 35 years under Section 203 of the law. For grants by an author on or after 1978, termination must be exercised prior to the 5 year period beginning at the end of 35 years from the execution of the grant. Although there are certain formalities which must be complied with to effectuate termination of the transfer, this essentially means that recording artists and songwriters were entitled to exercise their rights of termination on post-1978 works as of the start of 2013. Current headlines announce that many superstars have done precisely that, and then turned around and sold their music catalogs for millions of dollars. Although under Section 203 heirs who execute such a grant post-1978 cannot reclaim those rights again (e.g., Prince's estate), grants executed by an author on or after January 1, 1978 (including recent catalog sales by Dylan, Springsteen, Sting, etc.) do appear that they can be recaptured again after 35 years. 

    As a matter of music business history, back when the 1976 Copyright Act was drafted, few practitioners would have envisioned a world where the artists might not need the record companies to finance, manufacture, warehouse and distribute their physical records. Back then the expectation was that, although any particular artist could exercise the termination right, what would effectively happen is that the label and artist would simply be forced to renegotiate a deal to continue working together (either with the artist or with the heirs of the deceased songwriter or artist). Now, in the current digital transmission age, this is no longer necessarily true. Any artist can demand back the copyright in the masters and then simply offer them directly to fans on the artist’s website or the artist can license the rights to an online aggregator or digital streaming service with little or no expense. This is particularly true in the case of the recordings of certain well-established artists because those artists would not need the record company’s ongoing support to finance the recording costs to create new recordings, store their product nor require the funds for promotion and marketing. High profile artists with established fan bases and large catalogs of music like Blondie, the Cars, Bruce Springsteen and others have no need for much in the way of advertising and marketing, and there is no longer a need for manufacturing, distributing or warehousing of their product. Simple ownership and possession of the digitized masters is sufficient to conduct business.

     It is noteworthy that, unlike song publishing contracts which generally provide for the assignment and transfer of a song copyright to the publisher, most record contracts have provided that the sound recording is created as a “work for hire” for the record label. Under the 1976 Copyright Act the termination provision is not applicable to certain types of copyrights, including a genuine “work for hire” grant. However, this does not preclude recording artists from exercising their right of termination. Sound recordings are not listed under section §101(2) which identifies various works that constitute a work for hire. Moreover, several years ago I litigated a case, Ballas v. Tedesco (41 F.Supp.2d 531 (D.C.N.J. 1999)), where a New Jersey Federal District Court addressed this issue and Judge Greenaway held that the sound recording in that case did not qualify as a work for hire. There is a great deal of case law addressing the applicable legal employer/employee issues involved including those established in the seminal Supreme Court case Community For Creative Non-Violence, 490 U.S. at 738, 109 S.Ct. 2166 which held that a statue did not satisfy the terms of §101(2) because it "does not fit within any of the nine categories of ‘specially ordered or commissioned' works enumerated in that subsection, and no written agreement between the parties establishes [the statue] as a work for hire.” Most case law that addresses the subject of “work for hire” holds that whether a work created by an employee is a work for hire or not depends on various factors as well as the circumstances of the relationship - and not just the language of the contract. This area of law has been ripe for dispute by any recording artist who tries to exercise termination rights against a record company that resists the claim where the facts suggest that no genuine “work for hire” relationship ever existed.

     Many superstar artists and songwriters have exercised their termination rights under the 1976 Copyright Act, regained their catalogs, and then made multi-million dollar deals to sell the catalogs. Current copyright law provides that the a copyright extends for the life of the author plus 70 years, so 35 years from now Section 203 of that same 1976 Copyright Act may allow the heirs of those superstars to terminate these current transfers, regain the catalogs, and start the whole process again resulting in more remuneration generated from the copyrights.

Wallace Collins is a New York lawyer practicing primarily in the area of entertainment law. He was a recording artist for Epic Records before attending Fordham Law School. www.wallacecollins.com

 

Understanding The Compulsory License and How It Applies To Digital Transmissions Under The Music Modernization Act (MMA)

Under the US Copyright Act, Section 115 provides for a compulsory license to make and distribute sound recordings subject to certain terms and conditions of use. Under the compulsory license procedures, an artist need not ask the songwriter or music publisher for permission to make a recording nor negotiate a license fee. Instead, an artist merely informs the publisher of the recording and agrees to pay royalties as music is sold at the rate set by statute. Once a song has been recorded and distributed to the public on recordings, any person or group is entitled to record and distribute their own recording of that song without obtaining the copyright owner’s consent, provided they pay the statutory royalty and abide by the copyright law requirements.

In order to take advantage of this compulsory license, a notice must be sent to the copyright owner and then monthly accountings made thereafter. In order to obtain a compulsory license, you must (1) serve a timely Notice of Intention to Obtain a Compulsory License (NOI) on the copyright owner; and (2) make monthly royalty payments to the copyright owner. The fee for physical recordings is currently 9.1 cents per song (or 1.75 cents per minute of playing time) while the digital streaming compulsory license fee is a small fraction of that amount. To verify the current rate, check the Copyright Office's guide to compulsory licenses (On the site, you can click “Mechanical Royalty Rate”).

The Music Modernization Act (“MMA”) changes the Section 115 compulsory licensing process for digital music providers from song-by-song licensing to blanket licensing.  Prior to the MMA, song-by-song licensing required digital music providers to identify and locate, serve a notice on, and make payments to the copyright owners for every song on the provider’s service.  This is a huge task, and many lawsuits were filed against digital music providers alleging noncompliance with the song-by-song licensing requirements.  The MMA changes this approach to a blanket license that is administered by a new organization, the Mechanical Licensing Collective (“MLC”).  The blanket license is essentially a one-stop-shop for digital music providers.  The MLC will establish and maintain a comprehensive public musical works database, match works used by digital music providers, collect royalties from digital music providers, and distribute royalties to copyright owners.  The new blanket license became effective on January 1, 2021. 

The compulsory license provisions for recording music apply only to the use of the song for non-dramatic musical compositions. You could not, under the compulsory license, use it for dramatic purposes, such as in an opera or an overture to a musical. The compulsory license applies only to audio-only sound recordings distributed to the public. Therefore, it cannot be used to record a song for use on a television show or movie soundtrack. In such a case, permission would need to be obtained directly from the copyright owner.

Wallace Collins is an entertainment lawyer specializing in entertainment, copyright, trademark and internet law. He was a recording artist for Epic Records before attending Fordham Law School. www.wallacecollins.com

IS A TIKTOK DANCE ELIGIBLE FOR COPYRIGHT PROTECTION?

When I was recently asked whether someone could procure copyright protection for a TikTok dance, it got me thinking and so I decided to write this article on what I found based on my research.

Under US Copyright Law, a dance created by a choreographer or dancer is considered a creative work that can be granted copyright protection if: (i) it is an original work; (ii) it is a coherent whole (i.e., not just individual movements); and (iii) if it is fixed in a tangible medium (e.g., written illustration of the dance steps and movements or a video recording of the dance).

When someone creates a choreographed dance on a platform such as TikTok, that creation just might be eligible for copyright protection. However, simple dance routines - like an end zone celebratory dance or a series of yoga positions - have been deemed not protectable under copyright law. Basic dance moves or simple routines cannot be copyrighted separately, but a creator can copyright a dance as long as it is an original work which consists of the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole. All of the dance moves which constitute the choreographic work must be described with enough detail so that the work can be consistently performed. Most protectable choreographic works are usually those which are intended to be executed by skilled performers in front of an audience, such as a ballet or a modern dance routine.

In most cases that TikTok dance probably falls into the non-protectable category, unless  there is a sufficient combination of body movement, spatial movements and coordination with musical accompaniment such that the social media dance would be protectable. Protection is more likely if the performance is by a skilled dancer, is for the entertainment of others (i.e., not for others to mimic for their own enjoyment) and involves a discernable storyline or theme.

Choreographic works are afforded the same exclusive rights as any other copyrighted work so, once protected, it would be copyright infringement and the basis for legal action if someone without legal authorization publicly performs the choreograph work or adapts, distributes or reproduces the work. When a dance is deemed copyrightable then copyright accrues from the time it is fixed in a tangible medium or expression (written or recorded) and lasts for the life of the author plus 70 years. Registration is not required for protection, but registering early grants additional protections and is required before the author can commence legal action in court. If a video was posted online that you believe infringes on your copyright, your first step should be to request that the offending video be removed under the Digital Millennium Copyright Act.  However, the digital service provider can restore the material if the alleged infringer sends a counter-notice explaining why the material is non-infringing – which then leaves the copyright claimant for the choreographic work with no alternative but to file a lawsuit against the alleged infringer as the  last  resort to protect the copyright.

Wallace Collins is an entertainment lawyer specializing in entertainment, copyright, trademark and internet law. He was a teenage recording artist for Epic Records before attending Fordham Law School. www.wallacecollins.com

SOUND RECORDING AND SONG PUBLISHING TERMINATION RIGHTS UNDER U.S. COPYRIGHT LAW

      The 1976 Copyright Act provides for the termination of copyright transfers. Even if an artist or songwriter signed a contract with a record company or music publisher which purports to transfer all rights in a work in perpetuity, the Copyright Act provides that the author can terminate that grant and demand that the rights revert to the author in a shorter period of time. Recording artists and songwriters are now entitled to terminate their contractual transfers and demand back control of their copyrights; songwriters can demand return of their musical compositions from music publishers and recording artists and record producers can demand return of their sound recordings from the record companies.

     Generally speaking, for copyright grants made on or after January 1, 1978 (the effective date of the 1976 Copyright Act) the termination period is 35 years under Section 203 of the Copyright Act. For pre-1978 works the termination period is 56 years after copyright was originally secured under Section 304 (c)-(d). For grants on or after 1978, termination may be exercised anytime during a 5 year period beginning at the end of 35 years from the execution of the grant or, if the grant concerns the right of publication of the work, then the period begins on the sooner of 35 years after publication or 40 years after execution of the grant. Although there are certain formalities which must be complied with to effectuate transfer, this essentially means that recording artists and songwriters were entitled to start exercising their right of termination on post-1978 works as of the start of 2013.  

     Not unexpectedly, the record companies as well as the music publishers are not pleased with the copyright termination provision and the inevitable ramifications thereof. With respect to songs and music publishers, some seminal cases have already been decided. In Scorpio Music S.A. v. Willis (11 CV 1557 (C.D. CA 2012), California Federal District Judge Moskowitz determined that original Village People member, Victor Willis, could terminate his transfers and recapture a direct copyright interest in many of his group's songs, including "YMCA."  In this case, after Willis notified Scorpio that he was terminating the prior transfers, Scorpio sued arguing that Willis could not terminate because a majority of each song's authors had not also agreed to terminate their transfers. The court sided with Willis, ruling that an author can unilaterally terminate the transfer of his share in a copyrighted work without his co-writers. Willis stands to become the undivided owner of a one-half to one-third interest in 33 song copyrights. Although the Scorpio decision addressed a fairly narrow point concerning multi-author transfers, the decision sets the stage for the bigger battles looming on the recorded music side of the business. The same termination procedures apply to all copyrighted works, including the separate and equally lucrative sound recording copyrights transferred to record labels as part of typical recording artist contracts over the years.

     Back when the 1976 Copyright Act was drafted, few practitioners would have envisioned a world where the artists might not need the record companies to finance, manufacture, warehouse and distribute their records. Back then the expectation was that, although any particular artist could exercise the termination right, what would effectively happen is that the label and artist would simply be forced to renegotiate a deal to continue working together (either with the artist or with the heirs of the deceased songwriter or artist). Now, in the current digital transmission age, this is no longer necessarily true. Any artist can demand back the copyright in the masters and then simply offer them directly to fans on the artist’s website or the artist can license the rights to an online aggregator or digital streaming service with little or no expense. This is particularly true in the case of the recordings of certain well-established artists because those artists would not need the record company’s ongoing support to finance the recording costs to create recordings, store product nor require the funds for promotion and marketing. The more digital the music business becomes the more obsolete the large record labels may become for established artists. High profile artists with established fan bases and large catalogs of music like Blondie, the Cars, Bruce Springsteen and others would have no need for much in the way of advertising and marketing, and no need for manufacturing, distributing or warehousing of their product. Simple ownership and possession of the digitized masters would be sufficient to conduct business.

      Unlike song publishing contracts which generally provide for the assignment and transfer of a song copyright to the publisher, most record contracts provide that the sound recording is created as a “work for hire” for the record label. Under the 1976 Copyright Act the termination provision is not applicable to certain types of copyrights, including a genuine “work for hire” grant. However, this does not preclude recording artists from exercising their right of termination. Sound recordings are not listed under section §101(2) which identifies various works that constitute a work for hire. Moreover, several years ago I litigated a case, Ballas v. Tedesco (41 F.Supp.2d 531 (D.C.N.J. 1999)), where a New Jersey Federal District Court addressed this issue and Judge Greenaway held that the sound recording in that case did not qualify as a work for hire. There is a great deal of case law addressing the applicable legal employer/employee issues involved including those established in the seminal Supreme Court case Community For Creative Non-Violence, 490 U.S. at 738, 109 S.Ct. 2166 ("CCNV") which held that a statue did not satisfy the terms of §101(2) because it "does not fit within any of the nine categories of ‘specially ordered or commissioned' works enumerated in that subsection, and no written agreement between the parties establishes [the statue] as a work for hire.” Most case law that addresses the subject of “work for hire” holds that whether a work created by an employee is a work for hire or not depends on various factors as well as the circumstances of the relationship - and not just the language of the contract. This area of law appears to be ripe for litigation by recording artists who want to exercise their termination rights where the facts suggest that no genuine work-for-hire relationship ever existed. 

    From what I have researched, it appears that in most cases the artist has a fair likelihood of prevailing over the record company on this point when the CCNV "work for hire" factors are applied (i.e., artist not an employee (e.g., no unemployment benefits paid/withheld, etc.), artist not under the direct supervision and control of the record company during the creative process, etc.) - so I expect that the record companies will make a decision to negotiate with the bigger superstar artists and then turn the other cheek with the recordings generating less income and just let them revert back to the artists (since a bad precedent in a lawsuit could open the floodgates for other artists to demand back their masters).

     The termination rights of an artist or songwriter are generally subject to a 5 year window. Termination must be made effective within the termination window or the right to terminate the grant is forfeited. To be effective, the artist or songwriter must serve a written notice of termination on the original record company or publisher (and/or any successors) no more than 10 and no less than 2 years prior to the effective date stated in the notice. The notice of termination must state the effective date of termination. Perfection of the termination requires that a copy of the written notice also be filed with the U.S. Copyright Office prior to the effective date of termination.

     Although the termination rights of an artist under the 1976 Copyright Act would only be effective for the U.S. territory, the size of the U.S. consumer market for recorded music still makes this a valuable right to reclaim. However, what is good for the artists and creators might further erode the influence of the major record labels and prove detrimental to them as music industry powerhouses in the future.

Wallace Collins is an entertainment lawyer specializing in entertainment, copyright, trademark and internet law. He was a songwriter and recording artist for Epic Records before attending Fordham Law School. T: (212)661-3656 www.wallacecollins.com

Benefits for Producers and Recording Studio Engineers in the Music Modernization Act

The Music Modernization Act (“MMA”) is now the law of the land. The MMA is comprehensive and sweeping in its scope. The MMA revamps Section 115 and repeals Section 114(i) of the U.S. Copyright Act. It creates a public data base to facilitate and expedite payments to songwriters and it overhauls the rate Court system and changes the standard for setting rates to a free market standard. The MMA also incorporates several other major pieces of legislation including the CLASSICS Act (Compensating Legacy Artists for their Songs, Service, & Important Contributions to Society Act) which grants copyright protection to pre-1972 sound recordings so songwriters and artists can receive royalties on pre-1972 recordings and the AMP Act (or Allocation for Music Producers Act), which improves royalty payouts for producers and engineers from SoundExchange when their recordings are used on satellite and online radio.

Most importantly for record producers, the MMA codifies into law the right of music producers and recording studio engineers to collect digital royalties through a consistent, permanent process. The MMA is an amalgamation of several bills including the AMP Act. This portion of the MMA guarantees that producers and engineers not only receive credit but also proper compensation for their contributions to the making of a sound recording. SoundExchange, which administers royalties from non-interactive streaming recordings, will provide direct payment of royalties owed to producers and engineers upon direction by the featured artist.

Music producers have never been mentioned in any part of the copyright law prior to the MMA. The MMA has codified the producer’s right to collect those royalties due to them and formalizes SoundExchange’s current voluntary policy. As explained by the Recording Academy, which advocated for the AMP Act, “Since 1995, featured performers have had a statutory right to 45 percent of the performance royalties collected from non-interactive, digital music services. Subject to their contract with the artist, producers often collect royalties from that 45 percent because they were not included in the 1995 law for a statutory right.”

Record producers who are also songwriters should affiliate with a performing rights society (e.g., ASCAP, BMI, SESAC, etc.) in order to collect their performance royalties as well as the Mechanical Licensing Collective (the "MLC") in order to collect all monies that are due to them for their musical compositions.

For sound recordings older than 1995, the AMP Act establishes a procedure for producers and engineers to seek permission from featured artists or their heirs to receive appropriate royalty payments.

Wallace Collins is a New York lawyer specializing in entertainment, copyright, trademark and internet law. He was a recording artist for Epic Records before attending Fordham Law School. T: (212)661-3656 www.wallacecollins.com

Songwriters Still Need To Be Aware of the "Controlled Composition Clause" in Record Contracts

"Mechanical" royalties, so-called from the days when the only recordings sold were piano rolls which mechanically triggered a player piano, now represent royalties due to songwriters and their publishers for each copy of a record sold (whether physical copies or digital downloads or transmissions). The base statutory mechanical royalty rate in the United States is currently $.091 per song per record sold (and varies depending on whether the format is a digital download, streaming transmission, etc.). 

Pursuant to the U.S. Copyright law, this mechanical rate is applicable to all recordings made and distributed in the United States. However, due to certain ambiguities in the Copyright law, almost all record companies use their substantial leverage over new recording artists to cause them to enter into record contracts which substantially reduce this statutory mechanical rate pursuant to a controlled composition clause, often referred to as the "3/4 rate" since it typically reduces the amount to 75% of the statutory rate.

Under U.S. Copyright law, Congress established a statutory mechanical royalty rate for songwriters and their publishers based on an upward-sliding scale tied to a cost-of-living index on a per song per record basis. However, the controlled composition clause, one of the many royalty-reducing provisions in any record contract, contractually reduces the mechanical rate for a songwriter/ recording artist and its publisher on songs written or otherwise "controlled" by the artist. Most such clauses not only reduce the payment per song, but may also put a limit on the total number of songs on which payment will be made and may fix the point in time at which the calculation will be made (thereby circumventing the cost of living index increase).

A detailed analysis of a controlled composition clause is beyond the scope of this article. However, for a simplified example of how it works, lets assume a typical clause which might say that the songwriter/artist will receive 3/4 of the minimum statutory mechanical rate ($.068 instead of $.091)payable on a maximum of 10 songs per LP. The mechanical royalty on the artist's entire physical LP then has a cap of 68 cents (3/4 rate x 10 songs) so that, even if the songwriter/artist writes 12 songs for its own album, the artist's publishing which should be worth about $1.09 cents an album at the full rate is only allocated 68 cents under this clause. To further illustrate, assume the 12 song album has 6 songs written by the artist and 6 songs from outside publishers. The outside writers and publishers are not subject to the artist's 3/4 rate so the 6 outside songs get the full rate and are entitled to a total of about 54 cents. However, since the mechanical royalty on the entire LP has a contractual cap of 68 cents, the recording artist's publisher is limited to applying the remaining 14 cents to the artist's 6 songs, so that the artist's publishing is worth only about 2 cents per song.

Some controlled composition clauses also contain language which further reduces the mechanical rate on mid-priced and budget sales, etc., providing for a 3/4 rate on the 3/4 rate. In addition, record contracts often contain several subparagraphs that eliminate royalty payments for free goods and records sold below wholesale price, etc. Several of these categories would ordinarily be subject to mechanical royalties absent the controlled composition clause and, although this provision reduces mechanical royalties on the artist's publishing, it does not reduce payments to outside publishers and writers since they are not subject to the terms of the artist's contract.

The most treacherous dilemma for the songwriter/artist is that, even if the record company does not expressly acquire the artist's publishing rights in its contract, the value of the artist's publishing may so greatly be reduced by the controlled composition clause that the artist may find it difficult to get a publishing deal elsewhere. This is particularly true if the mechanical royalties are cross-collateralized with the artist royalties which means that, until the artist is recouped, no mechanical royalties are payable on the recording artist's publishing.

The foregoing scenarios raise numerous legal concerns for the record labels. The specter of antitrust and restraint of trade claims arises since virtually all labels have the three-quarter rate in their contracts giving the artist little, if any, choice. Since the controlled composition language is almost identical in each label's contract, it might not be all that difficult for a plaintiff to establish circumstantially that the labels conspire to fix the rate. A claim of interference with prospective financial advantage could be raised since the controlled composition clause devalues an artist's publishing rights. Another pertinent issue to be considered is whether, under partnership law (where one partner can bind the partnership), an artist's co-writer who is not actually a signatory to the record contract is subject to the 3/4 rate by virtue of being a "partner" in the song's creation.

Although a controlled composition clause can be made somewhat less onerous through some tenacious negotiating (e.g., restrict only to physical records sold), record companies are generally inflexible on this provision and their obstinacy can only be mitigated if they have an ardent desire to sign a particular artist.

In fairness to record companies in the current marketplace, with the exorbitant cost and high risk of the recorded music business balanced against the greatly reduced financial rewards of the modern era, the companies need to cut costs where they can to try to make a profit on the few artists who do succeed. However, the question is one of whether devaluing the artist's publishing is a fair way of doing it. Record companies contend that, since they are financing the production and marketing of the artist's recordings, the artist should give them a break on the publishing royalties they would otherwise have to pay. However, whether the contractual reduction by a record company of the Congressionally legislated mechanical royalty rate would hold up if challenged in a court of law has yet to be tested.

Moreover, in the wake of Congress having amended the Copyright law to allow for performance rights for digital transmissions, and with the Music Modernization Act moving through Congress, the time is right for lobbying efforts by songwriter organizations and publisher groups to bring attention to the 3/4 rate issue and the need to clarify certain ambiguities in the copyright law so as to better protect songwriters and their publishing rights.

       Wallace Collins is a New York lawyer specializing in entertainment, copyright, trademark and              internet law. He was a recording artist for Epic Records before attending Fordham Law School.          T: (212)661-3656 / www.wallacecollins.com

LEGAL BASICS FOR THE DIY WORLD: ARTISTS, AUTHORS, CREATORS AND MUSICIANS

Four Essentials:

1) Copyright Protection 
Under US copyright law, copyright (literally, the right to make and sell copies) automatically vests in the creator the moment the expression of an idea is "fixed in a tangible medium" (in other words, the moment you write it down, type it or record it on tape). With respect to music specifically, there are really two copyrights: a copyright in the musical composition owned by the songwriter and a sound recording copyright in the sound of the recording owned by the recording artist (but usually transferred to the record company when a record deal is signed). It is important to remember that you own the copyright in your work the moment you write it down or record it, and you can only transfer those rights by signing a written agreement to transfer them. Therefore, you must be wary of any agreement you are asked to sign. 

Although it is not necessary, it is advisable to place a notice of your copyright on all copies of the work. This consists of the symbol "c" or the word "copyright", the author's name, and the year in which the work was created (for example: "(c) John Doe 2017). The filing of a copyright registration form in Washington D.C. gives you additional protection in so far is it establishes a record of the existence of such copyright and gives you the presumption of validity in the event of a lawsuit. Registration also allows for lawsuits to be commenced in Federal court and, under Federal law, allows an award of costs and attorney's fees to the prevailing party (and you can register on-line or by mailing in forms with submissions). Currently, the filing fees are low enough to make registration well worth while. www.copyright.gov

2) Trademark Protection for Your Name 
Trademark rights are rights in a name or logo which indicate source or quality. Such rights are based on "use" of the mark and vest in the owner when the mark is first used in connection with goods or services. Although the title of a work is not protected by trademark, these rights are applicable to names used by actors, musical performers, DJs and companies. The more unique the name of your company, product or band is, the more easily protection is available for it as a trademark. 

The best way to protect yourself is to file a Federal trademark registration application, since registration will give you a presumption of ownership of the name nationwide. Before investing too much in your prospective trademark, however, it is a good idea to order a trademark search to make sure no one else has been using the same or a confusingly similar name before you. You can do this through a combination of on-line researches, through your lawyer, or by contacting a searching service. With respect to the name of a performer or band, keep in mind that a mere search of current Federal trademark registrations may be insufficient. It is best to conduct a full statewide search as well as a search of the copyright office records in order to find any songs which may be copyrighted in a band's name. This is important because trademark rights are based on "use." Therefore, even if another user does not file for Federal trademark registration, certain rights vest in that user under state law when they start using the name. This has led to problems in the past. For example, when you go to release your record or film worldwide you may find that someone else has been using the name of your band or film company in, say, Illinois. If they were using the name prior to when you first started using your name then, under state law, that user could prevent you from releasing your record in that state. The usual solution to such a problem is to buy out that users rights, but this can be costly, or enter into an agreement to alter and distinguish the names (e.g., Squeeze/Squeeze UK; Dreamworks, Dreamworks SKG. 

Once you have determined that no one else is using your name, the next step is to file an application for Federal trademark registration in the US Patent and Trademark Office. Registration provides nationwide protection as well as the presumption of validity for lawsuit purposes, as well as legal fees and additional damages for infringement. www.uspto.gov
  
3) To Incorporate or Not to Incorporate 
As a practical matter, sooner or later you may want to incorporate in order to limit your personal liability. When you incorporate your business you actually create an entity separate from yourself which will have its own bank account and tax identification number. If you operate properly as a corporation (i.e., signing documents as an officer of the corporation rather than as an individual, using a separate bank account, etc.), then, as a general rule, only the corporation is liable for the obligations of the agreements the corporation makes. The easiest example of how this protects you is if you imagine a situation where your corporation pays you a salary of several hundred thousand a year for several years. Over the years you use that salary to buy a house, a car, and a boat. Then one day catastrophe strikes and the corporation is sued for millions or goes bankrupt. Although the creditors could take the assets of the corporation, they could not pierce the corporate veil and force you to sell off your house, your car and your boat (Imagine: even when Chrysler went bankrupt Lee Iacocca did not give up any of the assets which he had purchased with his salary. In fact, he kept right on getting a salary from the corporation). If properly employed, a corporate entity can be used as a shield to protect you. In most cases, however, it is not really necessary to incorporate at the start of your artistic career. The law does require that, if you use a name professionally other than your personal name, then you should file a Business Certificate (or "DBA") in the County in which you reside or do business under that name. A DBA is necessary if you want to open a bank account in your professional pseudonym or group or company name. The DBA form is available in stationary stores or at the county clerk's office.

There are also tax advantages to operating as a corporation. As an individual making in excess of  a certain amount, as set by the IRS, even if your write-offs and deductions reduce your income substantially you will still be subject to the "alternative minimum tax' under current law. However, as a corporation, you are entitled to take the deductions and, as an individual, you are only subject to standard tax on the amount which passes through to you individually. Also, as a business matter, the individual members of a group or company may want to enter into a partnership agreement between and among themselves in order to spell out the particulars with respect to certain rights such as songwriting and ownership of the trademark rights in the name. Otherwise, any group of two or more persons operating a business for profit is considered a partnership for the purposes of applying the laws of partnership under the laws of most states. These laws generally employ a rule of sharing evenly in profits and losses, including all assets of the business
  
4) Signing Contracts 
Never sign any contract given to you without having your lawyer review it first. Do not rely on anyone else (or even their lawyer) to tell you what your contract says. And never let anyone rush you or pressure you into signing any agreement. There is really no such thing as a standard "form" contract. Any such contract was drafted by that party's attorney to protect that party's interests. Your lawyer can "translate" the deal and explain its terms to you, and then help negotiate more favorable terms for you. 

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 (as Kim Basinger recently found out). It is just that a contract is easier to prove if the terms of the arrangement are in writing. A simple contract may not necessarily require extensive involvement by lawyers. A contract can be as basic as a letter describing the details of your arrangement which is signed by both parties to the agreement.

As a general rule, you should consult with a lawyer if you are asked to sign anything other than an autograph. Too many aspiring artists want to get a record deal so badly they will sign almost anything that promises them a chance to do it. Even successful careers have a relatively short life span. Therefore, it is important for you to get maximum returns in the good years and not sign away rights to valuable income like publishing. Everyone needs someone to look out for his or her interests. That is why, at the end of the day, you may want to consult with an entertainment lawyer. Meet with several lawyers to find one whose vibe is right for you. If you believe in yourself and your talents, give yourself the benefit of the doubt, and invest in good legal representation.

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