Get Ready for the California Consumer Privacy Act (CCPA)

/in , , /by

California’s new privacy rights and consumer protection law will change the internet and provide Californians with greater control over their data.

On January 1, 2020, AB-375, which is now titled the California Consumer Privacy Act (CCPA), came into effect and revolutionized how companies across the globe interact with consumer data. Specifically, the law dictates how businesses are permitted to collect, access, delete, and share California consumer’s personal information. Despite only being a state law, worldwide compliance from companies has already started due in part to California’s population of nearly 40,000,000 as well as the CCPA’s broad definition of the who constitutes a “California resident.”

Who does the CCPA apply to?

California Consumer Privacy Act applies to companies collecting data from California consumers.

The law only applies to companies who meet the following criteria:

  1. Is a business that actively or passively collects, buys, rents, gathers, obtains, receives, or accesses information that identifies, relates to, describes, is associated with, or could reasonably be directly or indirectly linked with a particular California consumer or household; AND
  2. Is a business that meets one or more of the the following requirements:
  • Has gross annual revenues in excess of $25 million;
  • Buys, receives, or sells the personal information of 50,000 or more consumers, households, or devices; OR
  • Derives 50% or more of annual revenues from selling consumers’ personal information.

As you’ve likely noticed, many of the major websites that you visit or are subscribed to have all recently announce updates that have been made to their Privacy Policy. These changes are being done by companies that meet the above criteria as well as those who are taking precautionary measures to become compliant, due to the severity of consequences which may result from noncompliance.

What does CCPA require companies to do?

The CCPA requires companies who collect personally identifiable information from California residents to comply with the law’s various requirements. Importantly, the company does not have to be located in, do business with or otherwise carry out operations in California, since the law’s application focuses on the user’s residency.

  • Notice – Provide consumers with advanced detailed notice of the type of information that the site collects from users and visitors.
  • Respond – Establish a procedure for responding to consumer’s requests and responses to notices.
    • Opt-Out – Consumers may request that the company will not sell their personal information. Companies are required to include a “Do Not Sell My Info” link.
    • Know – Businesses must disclose the personal information that is being collected, stored, used or sold. Consumers may request to know what type of personal information has been collected.
    • Delete – Requires businesses to comply with a consumer’s request to delete personally identifiable information.
  • Act – Compliance is achieved by responding to a user’s request and by acting in accordance with the CCPA’s requirements. Additionally, businesses are required to verify the identity of a person who submits a request to know or to delete collected personal data and can deny requests.
  • Disclose – Companies must disclose any financial incentives that the company receives in connection with the transfer or sale of personally identifiable information. Companies must also disclose any third parties who receives (through transfer, disclosure, sale or otherwise) personally identifiable information from the company as well as any related financial transactions.
  • Maintain – Establish and keep records, particularly of every request the company receives and how the company responds.

Which consumers can take advantage of the CCPA’s rights and privileges?

In addition to the law applying to company’s with or without California connections, the law is also applied to a broad definition of persons who are physically located both in and out of California . The definition of “resident” is provided in Title 18 of the California Code of Regulations § 17014 and applies to individuals who are considered to be a resident whether or not they are domiciled in California as well as non-residents who are domiciled in California.

How does the CCPA compare with the GDPR?

California Consumer Privacy Act versus General Data Protection Regulation

The California Consumer Protection Act is set to be a digital game changer when it comes to how companies and consumers interact with one another. Recently. the European Union (EU) raised the bar for requirements for sites that collect personally identifiable data have to adhere to. The new EU law is the General Data Protection Regulation (GDPR).

Matter GDPR
(General Data Protection Regulation)		 CCPA
(California Consumer Privacy Act)
Who
[The law applies to]		Consumer: Persons who are identifiable from data that’s collected.

Company: Person or entity who determines the means and purposes of processing activities.		Consumer: California residents.

Company: Person or entity who collects personally identifiable information from California resident and meets one or more requirements.
What
[Information is covered] 		Personal data is any information relating to an identified or identifiable data subject.Personal information that identifies, relates to, describes, is capable of being associated with, or may reasonably be linked, directly or indirectly, with a particular consumer or household.
Where
[Consumers or Companies are located]		Applies to organizations outside the EU if they monitor the behavior of persons in the EU or offer goods or services to persons within the EU.Consumer: California residents regardless of where they are located. Non-residents who are located in California.

Company: California location not required.
Requirements • Notice to be sent within 1 month following collection of personally identifiable information,.
• Notice to include specifics about type of data collected, how it was collected and why it was collected.
• Consumers may request removal or information.		 • Notice to be sent prior to or upon collecting personally identifiable information.
• Notice must include specifics of the type of information collected.
• Consumers may request a copy of collected information or request its deletion.
SecurityCompanies must implement appropriate security measures when processing data.Companies have a duty to implement and maintain reasonable security procedures and practices.
EnforcementAdministrative fines up to €20 million or up to 4% of company’s annual worldwide revenue.Civil actions brought and enforced by Attorney General. Penalties of up to $7,500 per violation.

What happens now?

Implementing precautionary measures.

An impact report prepared for the California Attorney General office estimates the total cost of CCPA compliance will be approximately $55 billion. The CCPA’s broad definitions concerning the type of information that’s being collected, along with an expansive class of consumers that the law applies to has resulted in a majority of major online sites and services to rush towards becoming compliant with the CCPA’s requirements. Additionally, other states around the U.S, such as Illinois, Texas, Maine, Vermont and others have either passed or have introduced new laws to govern the collection of personally identifiable information so as to increase the protection of consumer data privacy.

Applying universal changes.

So far, the trend has been for companies to become compliant by adopting data management and consumer interaction procedures for all users and visitors, as opposed to being dedicated for visitors and users who meet the CCPA’s definition of being a “California resident.” This practice is anticipated to ultimately be more cost and resource effective given the CCPA’s broad and encompassing language as well as the likelihood that other jurisdictions are anticipated to follow in California’s trend of protection over the gathering of consumer’s personally identifiable information.

Compliance with CCPA’s requirements.

By taking an early stance towards becoming compliant with the CCPA, you may be saving your business from exposure to liability for the CCPA’s fines and penalties. Consult with a CCPA Attorney today and learn more about the internet’s latest breakthrough in protecting consumer privacy.

Contact us today: Joshua@biletskylaw.com | 424-256-5075

California Just Released Your Personal Information

/in , , , /by

In connection with your California business entity, that is…


Last week, Alex Padilla, California’s Secretary of State, announced the launch of the newly designed California Business Search engine. Over 5,300,000 records were made public, which now includes potentially private information, such as certain names and addresses. For limited liability companies (LLCs), the names and addresses of the owners or the managers are now listed. For corporations, select officer positions now have the names and addresses listed of those who fill such positions. Given the sudden and drastic disclosures, although many are likely to see the move as a step towards transparency, others may otherwise see the change as an invasion of their privacy.

The updated site features; expanded search criteria, improved search capabilities, a new mobile-friendly design, daily data updates and the addition of information relating to Statements of Information of Records. Given the improved functionality of the system, the overhaul of the seemingly out-dated database appears to be an upgrade to the California Business Search division.

Although the updated user-friendly interface and easily accessible information will be welcomed by many, the publicizing of over 5 million filings may be less welcomed by others. This is not to say that such ownership information about a company that is registered to do business in California was not public before. Previously, it was possible to obtain more detailed information such as the names and addresses of the managers and officers of a business entity. However, to accomplish this, the only two options were to either submit a request by mail, or to show up in-person to the Sacramento office.

That’s now a thing of the past as the recent renovation publicizes an entities’ Statement of Information filing. This mandatory annual/biannual formality requires companies to list certain information regarding the identifying information of the managers or members of an LLC, along with information about the LLC’s management structure. Likewise, corporations are required to list some of the key officers of a corporation. All of this information and more is now just a click away from being accessible by anyone on the internet.

As has been the standard in the majority of states, and what has been the growing trend in other states, the details of a business entities‘ ownership/management information is usually easily accessible online by the public. Prior to California’s revamp of their Business Search database, the only information that was publicly displayed through a simple search was only the company’s; name, entity number, status, agent for service of process information and the company’s business address. This information is pretty much universally available in almost every other state as well.

Triumphed as a step towards greater transparency, the type of information that is now readily available to the public also includes the entity’s; principal office address and mailing address, the management structure of limited liability companies and the names and addresses of an LLC’s managers (or members if the company has no managers) and Chief Executive Officer, as well as the names and addresses for certain officers of a corporation such as the CEO, Secretary and Chief Financial Officer.

Of course, not everyone who’s a manager or an officer of a California business entity is affected by the change. California’s Secretary of State offers the option of providing a manager’s or officer’s “name and complete business or residential address” along with the Statement of Information. So, for those who had from the start always utilized a business address, rather than their home address, no records of their more personal information has been made publicly accessible.

The purpose behind wanting privacy when it comes to the information that is listed with your business varies from person to person and from industry to industry. Some business owners simply just don’t want their information on the internet; others may see it as a competitive strategy with hopes of keeping the company’s business structure hidden from a competitor. Whatever the reason, the truth is that there is not really an absolute way to make a businesses’ information completely private or anonymous. If someone has a purpose or desire to find out certain information, they will find it. It just may take more than just a quick database search.

California has never quite been seen as a “corporate haven”, especially when compared to other states, such as Delaware. This is due in part to California’s minimum annual franchise tax of $800. Now, the addition of easily accessible detailed information of a businesses’ ownership and management structure is likely to be considered as a step backwards from being able to lure out-of-state businesses to the nation’s most populated state.

Delaware, Nevada and Wyoming were once seen as the top privacy trio when it came to states that did not publicly provide the information of the owners or managers of a business entity in an easily accessible manner. Nevada has since made the names and addresses of directors, officers and managers public. However, Nevada is still seen as a favorable state with respect to preserving privacy, as the state allows “nominees” to be listed on the required Initial and Annual List, in place of the names of those who own and/or manage the business entity.

One state that has also been gaining plenty of attention among those who prioritize privacy concerns, strictly speaking towards a focus on the public listing of an entity’s owners or managers, is New Mexico. Going largely unnoticed by many entrepreneurs, New Mexico offers a wide range of unique and substantial benefits with respect to incorporating a business in the state.

One caveat to this is that the true benefit of privacy only exists with respect to New Mexico limited liability companies (with other entities such as corporations and limited partnerships not falling under this notion). In addition to New Mexico’s low filing fees ($50 for domestic LLCs), New Mexico does not record the names and/or addresses of the members or managers of LLCs on their initial filing, and New Mexico LLCs do not file Annual Reports. So, for an LLC in New Mexico, no member or manager information is ever listed on the state database.

Circling back to California, although it may be ideal to be able to choose which state you form your business entity in, choosing a state besides the one that the business will operate in, or in which the owner of the business lives in, is often not the optimal decision. Instead, this can often result in undesired consequences if the entity is not then registered in the proper state.

Before choosing which state to form your business entity in, it is important that you obtain all of the necessary information for you to be able to make an educated decision. Even if you do feel confident in your choices and even if you feel that you have done all of the research, it’s important that you contact a qualified business or corporate attorney to help guide you through the often complex legalities surrounding the formation of a valid and sustainable business entity.

For more information or to get started, contact Biletsky Law to help you with all your business and legal needs.

To Trademark a Smell

/in , , /by

Biletsky Law - Scent trademark

Trademarks are more than just logos and catchy phrases…

When a trademark comes to mind, people typically think of logos, brands, and the names of products or services. But that’s not all that is capable of being trademarked. In the United States, non-conventional trademarks are capable of being registered as well. These non-conventional trademarks include colors, sounds, tastes, and scents.

For scent trademarks (or olfactory marks), it wasn’t until 1990 when the first smell was successfully trademarked. That first scent trademark was for a brand of sewing thread and embroidery yarn which contained a scent “reminiscent of Plumeria blossoms” (In re Clarke, 17 U.S.P.Q.2d 1238 (T.T.A.B. 1990).

Although there has been successful registrations (mostly on the Supplemental Register) of scent marks since then, it is not necessarily the easiest thing to trademark. In the United States, a valid trademark must not be functional and must be distinctive. Proving non-functionality requires a showing that the scent be not “essential to the use or purpose of the article or if it affects the cost or quality of the article.” (Qualitex Co. v. Jacobson Products Co., 514 U.S. 159, 165 (1995)). This essentially means that those naturally occurring smells of a product are likely functional as they perform a significant function in the existence of the product.

Take for instance the scent of perfume. The scent of a perfume is inherent to the product since it is the function of the smell that is the basis for the product. In other words, if the product has a natural scent or if the product’s scent is what makes consumers buy the product, then the scent will likely not be able to be trademarked.

Even after being able to show that the scent is not functional, the distinctive component can be another hurdle in the trademark process. Distinctiveness is one of the core concepts of trademark law and deals with how “descriptive” the mark is of the product. How distinctive the mark is depends on whether there is a relation between the mark and the product or service. For instance, if a lawn mower company was named “Lawn Mower” the name would be very descriptive of the product and therefore, the trademark would not be distinct from the product and the trademark would likely be refused.

Distinctiveness can also be acquired through use and a show of evidence that consumers are readily able to identify the product or service. As you can see, distinctiveness is not just a complex concept, but it can also be difficult to prove.

It is because of the hurdles of non-functionality and distinctiveness that trying to trademark a scent can be such a difficult task. To make matters a little more difficult, you must also provide a description of the mark in the trademark application. Descriptions of scents are difficult in that not only are scents subjective, but putting words to smells can sometimes be difficult as well.

Keep in mind however that these obstacles for scent trademarks are specific to the United States. In Europe, it is a much different story for olfactory trademarks. The Office for Harmonization in the Internal Market is the governing body in the European Union. There, the issue is not functionality, but rather that the trademark needs to be “represented graphically” and be “capable of distinguishing the goods or services of one undertaking from those of other undertakings.”

The biggest hurdle with obtaining a scent trademark in the EU is the “represented graphically” part. One court has held that if the mark can be graphically represented “by means of images, lines or characters” in a “clear, precise, self-contained, easily accessible, intelligible, durable and objective” way, the sign may be eligible for registration. Ralf Sieckmann v. Deutsches Patent- und Markenamt (Case C-273/00, [2002] ECR I-11737 (ECJ Dec. 12, 2002)).

Beyond the United States and the EU, the status of scent trademarks vary from country to country and before attempting to trademark a smell, it is best to consult an intellectual property attorney.

For more information on scent trademarks or for assistance with your trademark, contact Biletsky Law.

Pilot and TV Series Agreements

/in , /by

Biletsky Law - Television Pilot OptionBeing given an opportunity to be an actor on a television series can be an exciting stage in an actor’s career. While the level of excitement will vary depending on the role that you are given, and the show that you are being cast on, there still is an air of excitement regardless of the project.

But what happens to this excitement if this is a show that you’ve never heard of, or even more so if it is a show that has never been aired? *Cut to close-up*, congratulations, you’ve been cast on a pilot!

For (almost) every television show, there is a pilot. A pilot is the developer or producer’s way to show the world what the new show will be about and who will be the regulars on the show. Although the world of television is changing due to new technologies and platforms such as Netflix, Hulu, and Amazon, the basic premise of a pilot still exists.

So what happens if you land a role on a pilot? Well, it is first important to understand what you’re starring in. The number of shows that are pitched to different networks and companies each season can be nearly unimaginable. People and companies from around the world spend months (or at least they should spend months) preparing pitches and sizzle reels all in the hopes of being picked up by a network or production company. Those few concepts which do make it through the heart aching process of selection are then given the opportunity to put everything they have on the line and to create a pilot for the networks and/or public to view.

Somewhere between the pitch, the sizzle, and the pilot, there comes a time where the developers need to attach talent in order to increase the value of the production. Herein comes the “Pilot Services Option.” This option essentially attaches you as talent for the production in the event that the idea gets the thumbs up and a pilot (and hopefully the rest of the season) is produced.

The Pilot

At this point, the developers don’t even know if the pilot is to be produced, but they want to have the option to attach you as talent in the event that it is. This option will set out the basic terms such as the length of the option, the compensation that is to be paid to you, the credit that you are to be afforded, and other provisions such as merchandising.

Once they have you secured as talent on the option, they need to go one step further and also secure you for the series, if it is to be produced. After all, a pilot which is successful would need to retain its original cast to keep the chemistry that was displayed in the pilot.

The Series

The series will also likely be in the form of an option since at this point, the developers are usually unable to commit to whether the series will also be developed. The series options will secure your place as an actor for one firm contract year, usually with as many as six annual options thereafter (coming soon, an article about the limitations of Personal Services Agreements). This section of the agreement will also lay out common terms such as compensation, credit, and other provisions related to the projects exploitation of your image.

Compensation

Generally speaking, your compensation depends largely on one thing: union or non-union. Union productions are governed by the terms of the union’s collective bargaining agreement and include certain minimums that union members must be paid. In the motion picture and television industries, it’s most likely going to be the Screen Actors Guild (SAG) whose minimums you must be paid, if you are a member.

Beyond whether you are union or non-union, other factors such as who you are as an actor, what kind of role you will be playing, and what kind of production you are being featured in will have an impact on your compensation as well. For actors who are more established, compensation will also be based on prior rates that you’ve received.

For an actor, prior rates received is an important part of the gig because in many instances your compensation will be based on what you were paid before. There are of course other facts that go into basing your new compensation off of your old pay in that it depends; what kind of role you played, what kind of production the project was, and how old the rate is. You can see why these factors matter as basing compensation for a lead actor in an action series based on an actor’s 6 year old rate for a drama where the actor played a minor role will not be an accurate portrayal of the actor’s worth.

Pay or Play

Another important aspect of compensation is whether you are “pay or play.” As it sounds, “pay or play” requires that the actor be paid regardless of whether the actor’s services are ever actually used. An actor who is given a pay or play clause is in a good position as regardless of the development of the project, the actor is being compensated. Due to the risk that projects never make it, producers are hesitant to grant pay or play unless the actor is a key component of the production. For larger, well-known actors, they will almost always be pay or play as it would not be worth the actor’s time commitment if they were not guaranteed compensation.

And so on…

There are many other provisions that go into these agreements, the more important of them being what happens in case you breach the agreement and if they are deemed to have breached the agreement. Typically, if you breach the agreement, you’re probably not going to be working on the project and may be liable for certain consequences resulting from your breach. On their side, you will not be able to stop the production or have any kind of equitable remedies in the event they breach. That’s just how the business goes.

For more information on television actor agreements, or for assistance with your television acting career, contact Biletsky Law.

The Talent Agency Act and You

/in , , , , /by

Biletsky Law - TAA“Procure employment.” These two words are something every artist and manager (and possibly others acting on behalf of an artist) should be aware of. In 1978 the Talent Agency Act was passed in California which required that any person acting as an artist’s agent be licensed. Most importantly, these laws broadly defined those who act as agents as those who “procure employment” for another. Also important is the repercussions for those who violate the Talent Agency Act (TAA).

One of the most famous of these cases is the 1996 case of the musical band the Deftones versus their former manager, Dave Park. Dave Park had sued the Deftones for failure to pay earned commissions. In return, the Deftones filed a complaint with the California Labor Commissioner regarding Park’s violation of the TAA. The Labor Commissioner’s investigation found that Park had violated the TAA on 84 occassions by procuring employment without a license. The result? All commissions earned by Park in relation to the Deftones was disgorged and returned to the Deftones and all management agreements were cancelled.

This hasn’t been the only instance where the TAA has caused headaches for managers though. Matthew Katz, the former manager of Jefferson Airplane, forfeited more than $12,000,000 resulting from his violation of the TAA. Other sizeable cases can be found in almost every corner of the entertainment industry from music, to movies, to theatre.

From the above examples, you would think that managers across the board would be inclined to attempt to keep their distances from any kind of activity that could potentially violate the TAA. But, that’s not necessarily the case. The roles of managers between industries are very much the same, yet vastly different, depending on the industry.

In the motion picture and television industry, the role of a manger is more confined to that of how the role of the manager is defined. The manager will look after the day-to-day operations, ensure that all of the projects are lined up and running smoothly, and make sure that all of the jobs that the agent had obtained for you are on your calendar and ready to go.

In the music industry, the role of the manager can sometimes be a bit more blurred. Your manager will do similar tasks such as ensuring that your recording projects are lined up and going smoothly, but from time to time, a manager may be able to book you a gig or an appearance. Although this seems to be within the normal realm of a manager’s duties, you can see why “procuring employment” could be as simple as booking a gig for your client or arranging an appearance where the client gets paid (autograph signing, product sponsorship, etc.).

So, after all the problems that the TAA can cause a manager, you may be asking yourself, why don’t these managers just obtain a Talent Agency license to make it so that they don’t have to deal with these sort of problems? In many instances, companies may offer both managerial and agency services and may be equipped with the necessary licenses. But for the most part, it is usually a pretty good bet that your manager does not also simultaneously have their agency license.

California has enacting somewhat strict guidelines and regulations for agents to be licensed. Although not prohibitively expensive or complex, the process is somewhat costly and lengthy enough to deter your average manager from also pursuing an agency license without having a legitimate agency business to run.

So where does this leave you? Well, if you are on the talent side, you can rest assured knowing that the law is usually on your side when it comes to keeping your team compliant with the law. On the management side, you need to walk a thin line in providing your services to your client to ensure that you do not run afoul of the TAA.

For more information on the Talent Agent Act or for assistance in a matter related to the TAA, contact Biletsky Law.

Fitness Releases

/in , /by

Biletsky Law - Fitness LawWhen going to work out in a gym, compete in a competition, or perform on the set of a production, you will likely be confronted with a release document to sign. While these release documents come in many shapes and sizes, the basic function of all of the releases is the same, which is to relieve the other party from liability.

In gyms, the predominant concern is that the gymnasium is providing a facility and equipment which you could potential injure yourself on. Gyms often require releases when signing up or when visiting to help shield themselves from liability.

When competing in a fitness or athletic competition, you are usually required to sign a waiver and a release form as well. With a competition, there is additional concerns beyond providing the facility and equipment in that you are also pushing your abilities to the limit and are at a greater risk of injuring yourself.

With regards to filming releases, regardless of the type of filming that you are involved with, there is undoubtedly going to be some kind of release or waiver which protects the production company from liability (and also allows them to use your image, amongst other things). This is even more so the case when dealing with productions that involve some kind of athletic or fitness performance. The importance behind these types of releases is the fact that you are being given access to certain facilities. Furthermore, you may also be given instructed to perform  certain activities where there is a high risk of death or serious bodily harm.

So, what’s in these agreements that act to protect these gyms, competitions, and productions from liability?

Acknowledgment of Risk

One of the first parts to the release is going to be a section where you formally acknowledge the inherent risk in participating in whatever it is that you are signing up for. Whether it be the 30 foot rock wall at the gym or the sword fight scene that you are featured in. If there is some kind of activity or thing that carries with it a risk of injury or death, this paragraph will make you acknowledge that such a danger exists.

Assumption of Risk

This section comes with it more history and controversy than most other sections. There have been cases upon cases dealing with the assumption of risk and whether they are against public policy and therefore invalid. One of these arguments is the fact that although the activity may be inherently dangerous, the operator of the activity still has a duty of care to keep you safe.

There are other logical considerations to take into account as well. For instance, sky diving has an inherent risk of harm that comes with partaking in the activity. In a world where the assumption of risk always prevails, the sky diving operator wouldn’t be held to such a high duty of care since you already assumed the risk. In such scenarios, what need is there to keep all of the safety procedures in place or the maintenance of the plane at top performance?

Release of Liability

You’ve acknowledged the risk, you’ve assumed the risk, and now you’ve taken the next step and released the other party from liability. This is the third step in the release where you agree that regardless of what happens, that the operator is not liable and that neither your nor anyone who may succeed you (in the event of death or serious bodily harm) will be able to bring any claims against them. Some of these releases will go pretty far as to release any kind of liability, even so far as to release them from liability resulting from their own negligence.

Disclaimer and Waiver of Warranties

Depending on the service or product, there are certain inherent warranties that come with the product or service. In certain instances these may apply more towards products themselves (think vitamins and supplements) where you are signing off that you do not expect the product to perform in a certain manner.

Miscellaneous

There are of course other provisions. Depending on the activity or situation, there may be terms which require you to pay for all of your own medical expenses, but which authorizes the establishment or company to call emergency personnel in the event of your injury. One reasons for this is that they do not want to pay your medical expenses. However, they also do not want your condition to worsen while you are injured on their premises. So instead, they want to have the authorization to be able to call and get you out of there as soon as possible.

Whether you own the establishment, are in charge of production, or are the athlete that is signing off on the waiver, it is important that you be aware of what kind of terms you are agreeing to with liability waivers and releases.

For more information on liability releases or for legal assistance regarding releases, contact Biletsky Law.

Live Performance Agreements

/in , /by

Biletsky Law - Live PerformanceWhile making music is certainly one of the life lines of an artist’s music career, it is the live performances that many rock stars, DJs, singers, and other musicians dream about. Nowadays, the way the industry works has shifted in such a way that live performances have become even more essential than they used to be.

What was once the complement to album sales is now the bread and butter for some artists. Although the performance aspect of a musicians career is exciting, it is also one of the most important agreements that needs to be negotiated for an artist. Without negotiating the proper terms and conditions of the agreement, an artist may end up losing or owing money after going on tour. So what are some of the more important parts of a live performance agreement that you need to be aware of?

Place of Performance

The place of performance is important for many reasons. For one, you need to know where you are playing (and also if it is an acceptable venue for you), second you will likely be receiving complimentary tickets and kills (seats or spots that are unable to be occupied for some reason) based on the net capacity of the venue.

Date of Performance

The date of the performance will also cover the number of performances (if multiple), the time of performance, and the length of performance. Related to the date of performance, but not necessarily included in this provision, may also be a restriction on where else an artist is able to perform for a certain length of time. These restrictions may be based geographically or by the type of venue.

Billing

For some arists, the billing aspect of the performance is as important, if not more important, than the compensation. Billing is essentially how the artist’s name or likeness is displayed in advertisements for the performance. The billing provision of the agreement will state whether the artist is headlining, whether billing is sole or shared, and may even include how the artist’s name or logo is to be displayed.

For certain events, headlining artists are able to receive a percentage of tickets sold, so it is important that the billing provisions include that the artist is headlining.

Compensation

How and what you get paid can be the determining factor of whether an artist will perform at an event or not. Compensation can come in various ways but is generally either a flat fee, a versus deal, a guarantee and door split, or profit percentage.

A flat fee, as it sounds is where an artist is given a flat rate for their peformance.

A versus deal is where the artist is given two figues, a flat fee guaranteed amount and a percentage of the net ticket sales. The artist will be given whichever amount is higher.

A guarantee and door split is where the artist is guaranteed a certain flat fee, but also recieves a portion of net ticket sales.

Lastly, a percentage deal will be where the artist receives an overall percentage on the ticket sales, usually with the house nut (what the venue has to earn to break even) subtracted.

There are of course other compensation methods, but these are some of the more common ones.

Rider

While billing and compensation are amongst the most important provisions in a live performance agremeent, the rider can be the most exciting part. The rider can be seen as the artist’s lists of demands in exchange for playing the venue.

As you can imagine, what goes into a rider varies greatly depending on the type of event, the venue, and most importantly…the artist. Riders may include everything from airplane and hotel accomodations to catering and meal requirements. Riders can specify almost everything from how the stage will be set up, to how advertising will be conducted and how opening acts will be selected. Those artists at the very top of the industry can, and have been known to, include more outrageous demand including everything from what color M&Ms are allowed, specifics on the furniture to be included in the green room, and even to have people dress as the Seven Dwarves.

Other – Exclusivity and Cancellation

There are many other imporant provisions to a live performance agreement. Two of these such provisions are exclusivity and cancellation. As mentioned above, exclusivity relates to the date of the performance in that there may be a black out provision where the promotor wants to have a monopoly of the venues that the artist plays. A restriction such as one that prohibits the artist from playing within a certain region (or at all) for 90 days prior to the event may be common to help build anticipation for the performance.

On the other hand is also cancellations. Things do happen and there are certain situations where the event must be cancelled. Generally, these are separated by those where the cancellation was due to force majeure (an act outside the control of the parties) where everyone losses, or where the artist has cancelled purposefully. In the event that the artist has cancelled, the artist will have materially breached the agreement and the venue’s remedies will be dependent on what terms were negotiated.

As you can see, the importance of knowing the terms of a live performance agreement can make or break your touring success. For more information on live performacne agreements or for assistance in your entertainment career, contact Biletsky Law.

Securities Exemption

/in /by

Biletsky Law - Securities ExemptionThe Securities and Exchange Commmission (“SEC”) is a federal regulatory agency in charge of, amongst other things, securities. Broadly defined, securities includes: “any note, stock, treasury stock, security future, bond, denture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement…investment contract”…and so on (15 U.S.C § 77b).

The definition then continues on for an entire paragraph listing over 20 different “scenarios” that constitute a security. While what the definition of what is considered a security is a topic for another article, a security is generally anything that a person or entity gives to another, without actively being involved in the control of operations, while expecting a return. This pretty much encompasses most types of investment that a business may receive in starting their operations.

Businesses that receive these types of investments are typically required to register the security offering (the offering of the investment opportunity) with the SEC. The registration process can be complicated and expensive to the point of being cost prohibitive for many small businesses. It is because of this that the SEC has set out several exemptions where smaller or more limited investment offerings do not require such complicated filings.

The exemptions that will be discussed in this article are based out of Regulation D of the Securities Act of 1933. Keep in mind that there are other possible exemptions and also, in addition to having to fulfill the requirements under the SEC exemptions, that you will still need to comply with state “Blue Sky” laws which govern securities at a state level.

Within Regulation D are several rules. Rule 504, 505, and 506 will be the basis of discussion for this article. Within each rule there are several requirements, each of which must be met in order for the offering to qualify under the exemption. Keep in mind that this article is meant to be a very brief overview of the securities exemptions. Each rule has many nuisances and before relying on any rules, it is always best to speak to a securities attorney first.

Rule 504

Businesses relying on Rule 504 may offer and sell up to $1,000,000 of their securities in any 12-month period. Under Rule 504, the company generally cannot solicit or advertise their securities to the public. Also, those who purchase the securities may have “restricted securities” which means that they may not sell the securities to a third party.

Companies wishing to rely on Rule 504 and who wish to advertise or solicit their securities must meet the following requirements:

• Registering the offering in a states that requires a publicly filed registration statement and delivery of a substantive disclosure document to investors;

• Delivery of the disclosure documents required by the state where the company registered the offering to all purchasers; or

• Selling exclusively according to state law exemptions that permit general solicitation and advertising, so long as the company sells only to “accredited investors.”

An accredited investor is a person or entity with a certain level of sophistication or net worth to where the investor is likely aware and capable of taking the risks involved with the investment.

Rule 505

To qualify under Rule 505, a company:

• Can only offer and sell up to $5 million of its securities in any 12-month period;

• May sell to an unlimited number of “accredited investors” and up to 35 other persons who do not need to satisfy the sophistication or wealth standards associated with other exemptions;

• Must inform purchasers that they received “restricted” securities, meaning that the securities cannot be sold for six months or longer without registering them; and

• Cannot use general solicitation or advertising to sell the securities.

As far as the information that is required to be given to investors, the company must give non-accredited investors disclosure documents that are equal to those used in registered offerings. Companys may determine what information to give to accredited investors so long as it does not violate the antifraud prohibitions of the federal securities laws.

Rule 506

Under Rule 506, a company can raise an unlimited amount of money. There are actually two distinct exemptions that fall under Rule 506.

Under Rule 506(b)

• The company cannot use general solicitation or advertising to market the securities;

• The company may sell its securities to an unlimited number of “accredited investors” and up to 35 other purchases.

Unlike Rule 505, all non-accredited investors must be sophisticated

• Companies decide what information to give to accredited investors, but companies must give non-accredited investors disclosure documents that are similar to those used in registered offerings. Any information that is provided to accredited investors, must be available to non-accredited investors as well;

• The company must be available to answer questions by prospective purchasers; and

• Financial statement requirements are the same as for Rule 505.

Under Rule 506(c), a company can broadly solicit and generally advertise the offering, but still be deemed to be undertaking a private offering within if:

• The investors in the offering are all accredited investors; and

• The company has taken reasonable steps to verify that its investors are accredited investors.

For more information about securities or for assistance in your business needs, contact Biletsky Law.

Music Synchronization

/in , , , /by

Biletsky Law - Music SyncMusic that is featured in your favorite television show, motion picture, or even commercial can create a unique connection between you and the production. In many instances, you may identify the production through the song or visa-versa. The fact that such a connection can be created just by synchronizing a song with a particular production makes certain songs that much more valuable to a production.

And herein lies the synchronization license. A synchronization license is an agreement that allows the creator or producer of a type of visual media to use a particular song, or part of a song, in synchronization with a visual media project, or in the form of advertising for the visual project.

If you are either the creator or owner of a song or a visual production, there are several factors that you need to consider:

The Length of Use

The cost of a synchronization license will depend upon the length of the song and whether the entire song is being used or just a few seconds of a song. The length that the song is being featured in the visual production will largely dictate what kind of influence the song will have. Having a song featured in its entirety will often leave a bigger association between the song and the visual production.

In some instances, where an entire song is to be featured in a visual production, a hybrid license is used where the producer of the visual media pays for the entire cost of a song for the privilege of being the first to use the song. After the song’s use, the ownership of the song will then go back to the owner of the song.

Where is the Song being Used?

Another issue to be considerate of is where the song is being used. The impression that a song gives when being featured in the opening or closing scenes is substantailly different from the situational impression that a song being used only in a specific scene gives. Since music that is being featured in the opening and closing scene of a television show or movie commands such an important role, there are premiums that must be paid for obtaining permission to use the song in such a position.

On the other hand, music that is being used for small durations will vary in cost depending on the actual length of the use and the type of use. For the use of a song in certain controversial or explicit scenes, there may need some negotiation to use more popular songs in such a scene.

The Type of Synchronization

In addition to where the song is being used and how long of the song is being used, another pivital concern is the type of use. Type of use generally refers to how the song is going to be used in the production.

Background Instrumental
Generally, instrumental music is cheaper to license than music that has a singing component to it. With a background instrumental sync, the viewers cannot see where the music is being played from and only the viewers, not the characters, can hear the music.

Background Vocal

Slightly more expensive than background instrumental is background vocal. This type of synchronization is where there are words being sang, but you cannot see where someone is singing. This is music that only the viewers can hear but the characters in the movie cannot.

Source

More expensive than background sync is a source synchronization where again, you can hear the singing, but you cannot see the the singer. However with this type of synch, the characters in the movie can hear the song. This plays a different role in the production since the characters are able to interact with the music.

Visual Instrumental

In contrast to the types of synchronization mentioned above are visual synchs. Visual instrumental is a type of synchronization where the viewer can hear the music and also see where the music is coming from.

Visual Vocal

Probably the most expensive type of sync license is a visual vocal license where you can see the person who is singing the song that is being played. The license will be even more expensive where the original singer or band of the song is playing the music.

Visual Dance

Yet another type of licensing is a visual dance sync license. This license, as it sounds, has dance components which are visable to the viewer.

As you can see, there are many different issues that come together when negotiating a synchronization license. Before you decide upon what kind of music to use in your visual production, take into consideration exactly how you plan to use the song.

For more information, or for assistance with a synchronization license, contact Biletsky Law.

Business Entity Choices

/in , /by

Biletsky Law - Start your businessDeciding which type of entity is right for your business can be a tough decision. There are many factors to take into consideration such as costs, taxes, liability, and legal fees. With the different choices that are available to you, it can sometimes be daunting to try to figure out which entity type is ideal for your business.

But don’t worry, you’re not alone. While entity specifics do vary from state to state, there are general similarities and differences between the states. This article will provide you with a brief description of some of the different entity types that are available to you. Although this article will give you a breakdown of the common characteristics of each type of entity, it is always best to consult a business or corporate attorney to help you decide on the best entity type to choose.

Sole Proprietorship

Regardless of the reasons that you may choose to go solo, a sole proprietorship is certainly the easiest business entity to set up in that you are the company. If you are operating your business using your last name, the process is even more simple. This is because you will only need to file a Doing Business As (DBA) of Ficticious Business Name with the county if you are using a name in which the owner is not easily identifiable. While the cost and ease of a sole proprietorship is alluring, one of the biggest downfalls is that there is no protection from personal liability. Since you are the company, there’s nothing to shield you from liability.

Partnership

A partnership can come in several different forms but the most common is a general partnership. One thing that you may not know is that although a partnership agreement is highly recommended, there does not need to be any kind of agreement between the parties for a partnership to exist. Rather, partnerships can be implied based on the actions of the parties (such as the sharing of profits and losses). General partnerships do not provide protection from liability for the partners, however there are several types of partnerships which do offer such protection. Without going into too much detail, there are limited partnerships where there is a general partner who is subject to liability and the rest of the limited partners who are shielded from liability. Depending on the state, there are also limited liability partnerships, and limited liability limited partnerships. The important aspect of each type of partnership is that there are two or more parties who are working together and either dividing profits, losses, or workload in such a way that a partnership can be implied.

Another aspect of a partnership is the manner of taxation. Partnerships have a “pass-through” taxation structure in that they are treated as disregarded entities and you will only be taxed once. This is in comparison to some forms of corporations where there is a double taxation, which will be discussed more in the corporation section below.

Limited Liability Companies

Recently, one of the most common entity choices are limited liability companies (LLCs). LLCs are attractive entity types because they offer the protection that a corporation offers, but also offers more flexibility in the structure of the company than what is possible to do with a corporation. LLCs are also unique in that you are able to elect how the LLC is taxed. This means that you can either be subject to double taxation, like a corporation (see below) or you can be taxed as a partnership or disregarded entity would be taxed.

Other forms of flexibility that an LLC has is the structure of the company itself. LLCs can be structured or managed in a variety of ways which helps the business be controlled in a customized manner that is best for the company.

Corporations

Corporations are generally divided into two different types of entities a C-corp and an S-corp (there are other types of corporations, such as a B-corp, but this article will focus on these general types). C-corps are generally used by larger corporations and do not have the certain limitations that an S-corp has. With an S-corp, you are limited to only 100 shareholders and can only have one class of stock. Whereas a C-corp does not have such restrictions. An S-corp further has some characteristics which are similar to LLCs. Such charecteristics include the option of being taxed as a partnership and therefore having single taxation. C-corps do not have the option of receiving pass-through taxation and are subject to double taxation. Double taxation means that those earning revenue from the corporation are taxed both at the corporate level and then at the personal level.

In addition to the taxation aspect, corporations are generally seen as the most favorable busines entity by investors and shareholders. One of the reasons for this is because of certain formalities that the corporation needs to follow in order for the corporation to retain its liability barrier.

There are many different charactersitics of each entity that is not discussed in this article and it is important to be aware of all of the nuisances of each before deciding on an entity. While the decision of which entity to form is certainly very important, choosing the wrong entity and figuring that out early enough can be a saving factor as many states allow conversions between entity types (for a fee).

For help with your business entity formation needs, contact Biletsky Law.