MVV194K Music Law

Právnická fakulta
jaro 2016
Rozsah
0/1. 5 kr. Ukončení: k.
Vyučující
Howard Siegel (přednášející), doc. JUDr. Ing. Michal Radvan, Ph.D. (zástupce)
Garance
doc. JUDr. Ing. Michal Radvan, Ph.D.
Katedra finančního práva a národního hospodářství – Právnická fakulta
Kontaktní osoba: Mgr. Věra Redrupová, B.A.
Dodavatelské pracoviště: Katedra finančního práva a národního hospodářství – Právnická fakulta
Rozvrh seminárních/paralelních skupin
MVV194K/01: Út 29. 3. 16:40–18:10 038, 18:15–19:45 038, St 30. 3. 13:30–15:00 038, 15:05–16:35 038, Po 4. 4. 16:40–18:10 038, Út 5. 4. 16:40–18:10 038
Omezení zápisu do předmětu
Předmět je určen pouze studentům mateřských oborů.

Předmět si smí zapsat nejvýše 30 stud.
Momentální stav registrace a zápisu: zapsáno: 0/30, pouze zareg.: 0/30
Mateřské obory/plány
předmět má 31 mateřských oborů, zobrazit
Cíle předmětu
By the end of the course, students should have acquired an understanding of the structure of personal management agreements, recording contracts and music publishing agreements and licenses and they should be able to explain the important issues that commonly arise in such agreements. They should also be able to appreciate the basic economics, the key business aspects and the copyright concepts attendant to those legal relationships, as well as the distinctions between the state laws that may apply. The students should be able to work with these concepts on a practical level, including the creation and drafting of typical contract clauses that are basic to these types of agreements. In addition, the students should have acquired a sense of how to approach and conduct themselves in an industry-related contract negotiation. Specifically, the students should be able to make decisions and deductions about identifying and interpreting the key contract concepts and how to best negotiate these points to achieve the desired results.
Osnova
  • Session One: A course overview is presented, including the three primary components of the course (Personal Management, the Recording Industry and Music Publishing), as well as what the students may expect from me during the semester and, conversely, what I expect from them in terms of preparedness and class participation. We will discuss approaches to the effective negotiation of entertainment industry contracts and we will also consider how companies seek to protect their investment in talent by requiring a “morals clause” in many types of agreements. The fact that the entertainment industry, and the music business in particular, is a business of intermediaries is discussed and provides a segue to the topic of one such intermediary, the personal manager. [Supplemental Materials Article: Tab 1 – “Proceed With Caution: Effective Negotiation of Entertainment Industry Contracts;” Supplemental Materials: Tab 2 – Morals Clause with Questions for Class Discussion.]
  • The topic of personal management is introduced by distinguishing the role of a personal manager in an artist’s professional life from the role played by other personal representatives such as booking agents, business managers, publicists and attorneys. The job function of personal mangers is analyzed as is the economic structure common to most management agreements. Issues such as length of term, options, and the dynamics of the relationship between the artist and his or her manager are also considered. [Course Book Chapter Nine, “Personal Management,” pp. 715-740; Appendices A and E; Supplemental Materials Article: Tab 3 – “Legal Pitfalls of Shopping Band Tapes.”]
  • The important differences between the laws of Nevada, New York and California as they relate to what a personal manger can and cannot legally do in furtherance of an artist’s career are examined and discussed in detail. The negotiation of contract clauses regarding the geographic reach of a management agreement, the areas of entertainment that are generally covered or excluded, the extent of the power of attorney granted to the manager, the overall decision making process, the calculation of the manager’s commission, and the oft-litigated issue of the manager’s entitlement to post-term commissions are also considered. [Supplemental Materials Cases: Tab 3 – Weisbren v. Peppercorn, 41 Cal App 4th 246; Styne v. Stevens, 92 Cal Rptr2d 655; Solis v. Blancarte, TAC 27089 (Labor Commissioner of California); Rhodes v. Herz, 920 NYS2d 11; Supplemental Materials: Tab 3 – Plaintiff’s Brief in Sally Jessy Raphael v. Burt Dubrow New York Supreme Court Case.; Tab 4 – Nevada Revised Statutes (Employment Agencies).]
  • Session Two: The Recording Industry topic first examines the underlying copyright concepts applicable to master recordings, the distinction between that copyright and the separate copyright that attaches to the underlying musical compositions, and the important, topical issue of an artist’s right to terminate previous grants to record companies of the copyright ownership of master recordings. The basic structure of record contracts is presented, including the core concepts of the term (including any options), exclusivity and the ways in which the respective rights of the parties are enforced in the event of a breach. [Course Book Chapter One, “The Recorded Music Industry,” pp. 1-35.] The subject of the inevitable conflicts that arise between the creative (artist’s) and the business (record company’s) interests under recording agreements is examined and analyzed, posing possible solutions via a mock negotiation. The essential economic elements of record contracts are considered including the concepts of “advances,” recoupment, cross-collateralization and the calculation and payment of artists’ royalties. [Course Book Chapter One, “The Recorded Music Industry,” pp. 36-49; Exhibit A, pp. 51-63; Supplemental Materials: Tab 5 – Recording Agreement Questions and Issues.]
  • Specifics of the recording procedure in the context of the parties’ respective contractual rights and obligations are discussed. This includes the areas of payment of recording costs, ultimate creative control both in the studio and in the marketplace, minimum product delivery requirements and the company’s release commitment, as well as re-recording restrictions and producer agreements. Also considered are audiovisual recordings and the grant of ancillary rights such as name and likeness rights and interests associated with merchandising sales. [Course Book Chapter One, “The Recorded Music Industry,” Exhibit A, pp. 64-91.]
  • Session Three: The impact of the new and emerging technologies on the music industry, with particular emphasis on the manner in which music is delivered to the consumer, and how that has changed in last decade, is examined. Among the more notable developments as a result of the altered methods for purchasing music is the emergence of so-called “360” deals which seek to supplement the record company’s diminished income stream by taking monies from other sources, including the artist’s merchandising revenue, music publishing earnings, live performance fees and management participation. These agreements are analyzed and discussed, along with more traditional marketplace concerns such as parental advisories (“stickering”), sound-a-likes, truth in labeling and instances of hearing damage sometimes suffered as the result of loud music performed at live shows. [Review Course Book Chapter One “The Recorded Music Industry,” pp. 45-46; Supplemental Materials: Tab 6 – “The Music Industry Coming Full Circle: The Historical Irony and Future Implications of “360” Deals;” Topical Recording Industry Articles.]
  • The topic of “controlled compositions” and mechanical royalties is examined, with a focus on the pervasive economic impact and legal implications of these clauses on recording agreements, for both the company and the artist. How and to what extent these provisions can be negotiated is considered, along with their impact once the term of the record contract has expired. Mechanical royalty provisions also provide a natural segue to the next course topic, Music Publishing. [Course Book Chapter Two “Music Publishing,” pp. 118-128; Review Chapter One “The Recorded Music Industry,” pp. 36-37 and 72-76.]
  • Session Four: As with the recording area, the music publishing part of the course begins with an examination of the underlying copyright concepts applicable to musical compositions, including the right of reversion as a subject of critical and current importance. From the creation of the copyright to the various types of agreements into which songwriters may enter with music publishers, as well as the role of a music publisher in helping to exploit a writer’s works, all aspects of the transformation of a song into an income stream are considered. [Course Book Chapter Two “Music Publishing,” pp. 105-118 and 159-179; Supplemental Materials: Tab 7 – Flow Chart of Music Publishing Rights and Income.]
  • Session Five: The four major sources of music publishing income are discussed along with an analysis of how these monies are collected on a worldwide basis and eventually paid out to the songwriters and music publishers. This includes calculation of the writer’s royalties. Issues of creative controls, length of term and post-term interests in songs are also examined. [Course Book Chapter Two “Music Publishing,” pp. 129-159; Supplemental Materials: Tab 8 – Defined Terms, Types of Contracts and Frivilous Lawsuits Article.]
  • The licensing of music in the various media is discussed, including both the use of master recordings and of the underlying songs in commercials, in motion pictures and television shows, on the Internet, in print and for live stage productions. [Course Book Chapter Two “Music Publishing,” Appendices D, E and F.]
  • Session Six: The purchase and sale of music catalogs, the issues associated with sampling and the availability of the “compulsory mechanical license” are all examined, drawing on class discussing from both the recording industry and music publishing parts of the course. As with recording agreements, the rights, remedies and defenses available to the parties in the event of a breach are discussed. [Supplemental Materials Cases: Tab 9 – Newton v. Diamond, 204 F.Supp2d 1244; Cherry River Music v. Simitar Entertainment, 38 F.Supp2d 310; Bridgeport Music v. Dimension Films, 410 F.3d 1189.]
  • California has two special statutes that profoundly impact upon recording agreements and many songwriter agreements which are governed by California law. Theses two statutes (the so-called “seven year” statute and the colloquially referred to “jump ship” statute) are examined. This final class also reviews some of the key topics discussed during the course. [Supplemental Materials : Tab 10 – Articles on Contract Duration and California Injunction Statutes; Supplemental Materials Cases: Tab 10 – DeHaviland v. Warner Brothers Pictures, 153 P.2d 983; MCA Records v. Newton John, 90 Cal.App. 3d 18; Motown Record Corporation v. Tina Marie Brockert, 160 Cal.App. 3d 123.]
Literatura
  • Siegel, Entertainment Law, 4th ed. (2013) (Selected chapters)
Výukové metody
lectures, class discussion
Metody hodnocení
For each student, a raw score will be calculated based on the final examination (80 percent of the raw score) and class participation (20 percent of the raw score). Class participation grades will be determined by class attendance, preparation, contribution to class discussion, and successful completion of any class exercise. The final examination will consist of one essay question.
Vyučovací jazyk
Angličtina
Informace učitele
Course Overview
The course consists of three core topics: Personal Management, Music Publishing and the Recording Industry. The legal focus revolves, although not exclusively, around New York and California where most of the statutes exist, and where most judicial (and administrative) decisions are made. The course will also cover all relevant aspects of Nevada law as well as federal copyright law. The business focus of the course will explore the basic structure of relevant industry contracts and the flow of income from both the artist’s and the company’s perspective. Procedural aspects of the course include a discussion of those approaches to contract negotiation that are most likely to yield success.
Supplemental Materials (to be distributed in class) : Various cases and articles covering topical issues and current developments.

Course Content
1. The first substantive topic covered is Personal Management. Personal Management is the logical starting point as, statistically, the overwhelming likelihood is that an artist’s first contract in the music industry will be a management agreement. Moreover, an artist’s relationship with his or her manager is often the conduit through which other music-related career opportunities are pursued. The rules that govern the business of personal management are considered by various examples that afford the students an opportunity to apply common sense thinking to legal hypotheticals, and to offer suggested solutions. The distinctions in job function as among personal managers, agents, business managers, publicists and, the hub of the representation wheel, attorneys, are considered in detail. The differences among California, New York and Nevada with regard to their respective statutes and cases are examined and discussed, along with emerging trends in industry custom and practice.
2. The Recording Industry portion of the course covers (i) basic copyright concepts applicable to “sound recordings,” (ii) the conflicts that inevitably arise between the creative (artist’s) interests and the business interests (the label or distributor) in the context of the parties’ legal relationship, (iii) common clauses that deal with the myriad of issues inherent in typical recording contracts including, among other topics, the payment of recording costs, the calculation of artist and producer royalties, so-called “controlled compositions” provisions, the remedies available, respectively, to the artist and record company in the event of a breach by the other party, creative controls, and options for additional recorded product, (iv) recording procedures, (v) the ways in which music is delivered to the consumer and how the format and economics of such delivery have changed in last decade and (vi) the ways in which the new and emerging technologies have impacted upon the recorded music industry, including the companies’ response to those changes via so-called “360 deals.” In considering all of these aspects of the industry, the applicable statutes, both state and federal, are examined, along with relevant cases. In addition, the class engages in a mock negotiation as a vehicle to more thoroughly explore some of the key points in recording agreements.
California has two specific statutes that impact directly on the recorded music industry; these statutes are examined and discussed by reference to judicial decisions and with the aid of hypothetical scenarios. In addition, the students are encouraged to discuss and debate a number of issues relating to exploitation of music in the marketplace. These include “parental advisories” (or “stickering”), sound-a-likes, tinnitus (a common complaint of concert-goers who suffer hearing damage at live shows) and truth in labeling.
3. The third substantive component of the course is Music Publishing – easily the least understood and most lucrative of all of the areas of the music business. As with recorded music, basic copyright concepts and emerging industry trends are illustrated by a discussion of the relevant case law, applicable statutes and the prevailing custom and practice. The ways in which a musical composition is transformed into an income stream for its writer, including an analysis of the four major sources of music publishing income, are also explored, both as a matter of basic economic analysis and by discussion of the applicable federal and state laws. Paralleling the recording industry, the music publishing component of the course focuses on creative controls and royalties and advances, as well as on the parties’ respective rights and remedies in the event of a dispute. Various types of songwriter and publishing agreements, including forms of commonly used music licenses, are reviewed.
As an adjunct both to the recorded music and to the music publishing portions of the course, the licensing of music in other media is considered, including uses in motion pictures, on television, in commercials and in live stage productions.
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