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Live Performance Agreements

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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.

Music Synchronization

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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.

Streaming Issues

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The way that people consume media has been evolving throughout the 20th century. The advent of commercial radio in 1920 followed by the first television station in 1941 were seen as milestones in the evolution of entertainment. Fast forward to the second half of the century and the evolution of our media consumption has evolved at an unprecedented rate. Radio and phonographs evolved to audio cassettes which evolved into 8-tracks and eventually compact discs. Terrestrial television morphed into cable and satellite, which was eventually recorded onto VHSs, DVDs, and BluRay discs.

Even the 21st century has made a leap into a new format which was not even conceivable until recently. In 2000, the way that music was being consumed drastically changed as a result of downloading services such as Napster, Kazaa, and Limewire. From that point on, the digital download started taking a larger foothold in the marketplace of the music industry. Within just a few short years, as personal computers and internet capabilities advanced, streaming services began to flood the marketplace where downloads had just recently taken over.

Nowadays, high speed internet delivers unlimited steaming capabilities right into our hands, anywhere in the world. Streaming media still continues to evolve with resolution and quality constantly reaching new levels. But with anything new, comes new problems. The earlier years of internet media and in particular, downloadable content, brought a new wave of piracy into the world. Copyright infringement soon became as easy as the click of a button. While the music and motion picture industry are constantly battling to thwart online piracy, streaming media has not only caused those industries new headaches, but has also created these headaches for others.

Take for example some of the recent sporting events that have taken place. On May 2nd, the world watched the “boxing match of the century” featuring Floyd Mayweather against Manny Pacquiao. Pay-per-view orders of the fight in the U.S were around $100 per order. The revenue earned from just the video on demand sales sky rocketed to reach record breaking figures. But it wasn’t just the paying or legally watching customers who were able to view the fight.

In the beginning months of 2015, well known and easy to use live-streaming applications have started to transform people’s ability to transmit content around the world, live. While the purpose of these applications are to facilitate the distribution of user made content or to broadcast certain events, these applications are more commonly being used to distribute the content of others illegally. HBO and Showtime, the co-producers of the Mayweather/Pacquiao fight, had done all they could to attempt to eliminate the possibility of people in the crowd streaming the fight for free. Other live-streaming concerns include movie premiers, sporting events, music festivals, concerts and other pay-to-view events.

With the spread of the popularity of these types of applications, it is difficult to see how content producers will be able to keep their content from being distributed for free. But, going back to the beginning of this article, this isn’t exactly the first time that these content makers have had to deal with this issue. Starting with programs such as Napster in 2000 and torrent downloading software thereafter, content producers have been in this struggle for a while.

Perhaps most hardly hit has been the music industry. Albums featuring 10-15 songs were at one point able to get a premium sale price of $20 per unit. With the explosion of downloading software, the business models have had to shift and now iTunes sells songs for just 99 cents and streaming sites offering music for free.

But the music industry hasn’t collapsed because of this, and in fact, new artists that would never have been known are now starting to thrive due to the free distribution of their music which has allowed consumers who would not have usually purchased their music to become fans. Where the future of streaming content goes is anybody’s guess, but what impact it has on the entertainment industry is up to the consumers.

For more information about the legal issues involved in streaming media, contact Biletsky Law.

Happy Birthday Copyright

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Biletsky Law - Happy BirthdayThe timeless classic “Happy Birthday” has been around in some form since as early as the late 19th century. However, for the last 80 years, there has been an underlying ownership claim to the song which has required those who had performed the song to pay license fees or royalties.

First, a little background about the song “Happy Birthday.” In 1893 Patty and Mildred Hill composed a tune called “Good Morning to All.” Around 1912, lyrics were added to this tune and the song became “Happy Birthday to You.” Up until this time, there were never any registered copyrights for the song and it is even disputed if the song itself was written down anywhere. The reason that this is an important aspect of the story is that one of the requirements for a copyright to exist is that it be embodied in a “tangible medium of expression.” (See my blog post “WHAT’S IN A COPYRIGHT?”).

In 1935 a company named The Summy Company registered the copyright in a song entitled “Happy Birthday.” This copyright was then purchased by Warner/Chappell Music for an estimated $5 million.

Modernly, Warner/Chappell Music has aggressively protected what the Guinness Book of Records calls the “the most recognized song in the English language.” Synchronization licenses (a license to use the music in a TV show or movie) can cost thousands of dollars with willful copyright infringement coming with a hefty $150,000 penalty.

In 2013, a class action lawsuit was filed against Warner/Chappell Music to refute their copyright claim to the renowned song. The class action was brought by Good Morning to You Productions Corp. on behalf of the individuals and companies who had to shell out sometimes thousands of dollars to use the song in television shows and movies joined the suit. One of the main arguments against Warner/Chappell’s ownership is simple, that the original tune, made in 1893, is no longer subject to copyright protection.

Like most other laws in the U.S, copyright laws have evolved over time. The largest milestones in copyright law in the U.S have been in the years 1790, 1909, 1976, and 1998. Without going too specific into each law, copyrights under the 1790 law enjoyed a duration (how long they lasted) of up to 28 years. Then the Copyright Act of 1909 changed the duration to a maximum of 56 years. The modern 1976 Copyright Act changed the duration to the life of the author plus 50 years. Finally, duration was changed to where we are today, the life of the author plus 70. As you can see from the duration of copyrights above, a work that was copyrighted in 1893 would likely not still be valid.

As of now, the suit is slowly inching towards trial with motions having been heard as recent as March of 2015. Either way, this trial is likely to last for a while as the battle between one of the largest music publishers in the world continues.

For more information on copyright laws, contact Biletsky Law