Musician Claims Contract Signed Under Duress

Dear Rich: I recently resigned as a guitarist from a band I had co-founded due to harassment. Upon leaving (and under duress), I was forced to sign a 'departure contract' formed by one of the band members (no legal background). This contract had stated that I am not to be paid any money for the work I had put into the band. I was the main songwriter and producer in this project and wrote guitars, bass, drums. They gave me performance credits on the album but will not acknowledge compensation for this work. The band has been getting some strong publicity now and I would like to know what my rights are as a now departed member of the band?  Should I contact a music lawyer? Should move on or wait it out? I would just like to get closure and know that the work I put in wasn't rewarded to someone else. In order to reach a state of epistemic "closure," you must "uncloud" your uncertainties (at least that's what Wikipedia says). So here goes.
Can the contract be enforced against you? A valid contract is one that a court will enforce. Some reasons your contract might not be enforceable are if (1) it violates the law or public policy, (2) there's no consideration -- you didn't receive any benefit from the arrangement, (3) the other side fraudulently induced you to sign, or (4) you were coerced (duress) into entering into the agreement. If fraud or duress are present, then you can void the contract. All parties are released from their obligations and you can pursue your claims against the band. In cases of intentional fraud—for example, if a band mate deliberately lied to induce a deal, you can elect to seek additional damages under tort law. (BTW, even if the agreement is valid, you may also have claims that the other side breached it, thereby terminating the agreement.)
What is duress? Duress occurs when a party’s consent to a contract is physically or mentally coerced. A party under duress lacks the legal free will to refuse to sign. Therefore, the agreement is not voluntary and the contract that results must be voided. Threats of physical force are rarely used as a means of inducing a contract. Instead, economic duress has emerged as a bigger issue. Economic duress (also known as “business compulsion”) occurs when, for example, a supplier of goods jacks up the price on a customer who is in desperate need of goods, or one party threatens to breach an existing contract unless the other party agrees to some further demand. But keep in mind that proving duress in a court or at an arbitration -- which is where you'll have to prove it -- requires more than threats. You'll also need to show you had no other choice but to comply, a sometimes difficult task.
Does the agreement transfer copyright? The musical compositions and the musical performances are works that are subject to copyright. In order for the band to acquire those rights, the agreement (or some other written agreement) must specifically transfer these rights. If the agreement doesn't say anything about copyright ownership, your rights in those works may be unaffected and you are probably free to register your rights in your name. Along with that, you can exploit your interest in the songs and collect royalties for their use.
Bottom Line Dept. If you want true closure, you should see a music attorney.

She Has Non-Compete in Book Contract

Dear Rich: I have a contract for a book that will contain entries from my website. In addition to my own site, I write a regular freelance column and occasional one-off articles on a certain subject for print and online publications. The freelance work I produce is not identical to what I'm planning to include in the book but there is a lot of overlap in the basic information (suggested lists of supplies, how to use cookie cutters, etc.) Considering the clause, below, that came with the contract, would my own site, my freelance column and my one-off articles be deemed to be competitive? The clause reads as follows:

 NON-COMPETITION. The Author shall not prepare or be concerned in the preparation other than for the Publisher of any work which shall be an expansion or abridgment of the current Work, in whole or in part, or of a nature likely to affect prejudicially sales of the current Work. The Author will consult with Publisher before publishing or producing another work likely to affect prejudicially the sales of the Work herein contracted for.

How long? Our initial concern about this provision -- besides the fact that it doesn't accurately define a competing work, and is written in a funky old-school contract writing style -- is how long the provision can be enforced. Since no time period is mentioned, we assume it's enforceable for the term (time period) of the agreement. We don't know what the term is, but it should be written somewhere in your agreement. In book contracts, it's typically for as long as the book remains in print (see our previous entry) or for the length of copyright. In either case, that's a long time. So, if you have the bargaining power, you might want to put a timer on this one -- for example, to preface the provision by saying, "For a period of one year, following publication of the Work, the Author shall not ....
What's competing? Our second concern is that it doesn't clearly define a competing work. It's no accident that this provision is vague. In the minds of some attorneys, ambiguity increases the breadth of coverage because it makes it possible to threaten and intimidate an author over any type (as long as it will "affect prejudicially sales") or size ("an expansion or abridgment") of work.  An author with some bargaining power would want to limit this to a specific thing -- for example book-length works on the same specific topic. Also, if the contract contains a clause providing a right of first refusal for your next work (the publisher has first dibs on your next book), you should add language saying that if the publisher doesn't want to publish it, that your second book will not be considered a competing work.
Does your other stuff compete? Because the provision is so vague, we can't say whether the publisher will care about your other works and if so, what will the publisher do. If we were a betting blog, we would bet that the publisher probably won't care or do anything. First, they're probably aware that you're the expert on this particular subject and they're aware of your site and your freelance column, so they won't want to put a halt to this type of self-promotion -- it helps the book. Your one-off articles may or may not trigger friction. That depends on who is publishing them and where they are being published. One way to secure your position is to include a mention of the book in any of these efforts as that way you can make a reasonable argument that they are promotional not prejudicial.
Just sayin'. If you speak with one of the editors or publisher reps, you may want to discuss these concerns. The publisher may not change the contract (which will ultimately control what happens) but they may assure you that the provision is rarely enforced.
PS Feel free to send our contracts book to the company's legal counsel.

SEO Company Ruined My Web Site!

Dear Rich: I am a self-employed career coach who owns and maintains her own business web site. All of the copy on the site was written by me and has been painstakingly crafted by me over the past four years. From it I have garnered numerous new clients and many comment that it was the content of my site that drew them in. Last November I hired a company to perform SEO services on the site in order to improve its visibility on search engines. I signed a contract with them, committing to an $8,000 expenditure in order to receive guaranteed search results on the major search engines. Most of the contracted services pertain to meta tags, keyword optimization, indexing and back links. The contract explicitly states that the SEO company will be making recommendations to me for improvement of my rankings, and I am obligated to make those changes. No problem so far. They had not recommended any necessary changes so I believed all was well, and expected that when/if changes needed to be made they would let me know. Yesterday I noticed that the copy on my web site had been dramatically, horribly altered. Everything I wrote for the site is gone, replaced by poorly written text, bad grammar, typos and flat-out inaccuracies. For example, I charge a fee for an Introductory Session; yesterday I noticed the word FREE had replaced my fee on numerous pages. And this was the tip of the iceberg as it became clear that all of the copy on my site had been replaced by embarrassingly bad writing. This was a heartbreak. I was never informed that my copy would be changed, I never authorized the editing of my copy, nor did anyone at the SEO company communicate that it had made the changes. I only learned of this by accident when visiting my site yesterday. It appears that this abomination of my copy -- and my professional image -- has appeared on my site for a couple of weeks. (Thankfully, only a couple of weeks). I spent several hours yesterday repairing the damage they had done. Based on the terms of the contract, I can't sue the SEO company for non-performance of their SEO duties. Can I file suit for copyright infringement? Before we bring in the lawyers, let's consider some practical issues:

• Did you pay the whole sum up front? If not, obviously, you should hold off on making any additional payments until this matter is sorted properly. Did you pay with a credit card; if so check with the provider to determine whether you can dispute the payment. Ditto for PayPal.
• Are you sure that your contract states that you are obligated to make the recommended changes? That seems a little odd ... agreeing ahead of time to make unknown changes. Are you sure there isn't some sort of approval process? If not, your situation becomes a bit murky, especially because you apparently gave them access to your site in order to modify it.
• Perhaps you can claim non-performance of duties. Just because the company mucked about in your website doesn't mean they performed their services. From your description of what happened, it sounds as if the company breached the contract by going beyond standard SEO techniques and interfering directly with your marketing. The fee-to-free fiasco seems particularly irksome. 
• Where is the company located and what does the agreement say about disputes? If, by some miracle, the company is located in your home state, that will make it easier to sue in small claims court and recover. Does the agreement have a jurisdiction provision explaining where you have to sue, or an attorney fee provision guaranteeing the winning party their attorney fees?
• If you gave the SEO company the keys to your site ... In case you haven't done so already, it's time to change the access password in order to prevent any further setbacks.
• Have you informed the company of your displeasure? After you've reviewed all your options above, you should send a notice (see if the contract has notice requirements) informing the company of your displeasure and letting them know that you consider them in breach and -- for what it's worth -- that you want a full refund. This is sometimes a prerequisite for small claims court or credit card claims.
• Can you sue for copyright infringement? Copyright infringement is the unauthorized use or modification of a work. If you gave the company access to your site and permission to modify, your problem will more likely be considered a contractual dispute, rather than a copyright claim.

Should I Sue for Copyright Infringement or Breach of Contract?

Photo Week #4
Dear Rich: I still haven't been paid for some photos I did for a local car dealership. They're using the photos online and in advertising. I have a signed contract. Is this infringement?  It's not likely to be considered copyright infringement. That's because the judge, with some exceptions, would consider your case as a contract dispute, not a copyright dispute (a common legal toss-up). In other words, the car dealership has acquired the contractual right to use your photos; they just haven't paid you. So the battle isn't over your rights under copyright law; it's about rights under contract law (as in this case). That may not be so bad because your contract may provide for attorney fees or for dispute resolution such as arbitration -- money-saving provisions that might not be available to you under copyright law. If you did sue, you would be doing it in your local state court, not your local federal court. You could even file it in Small Claims Court if the amount you are seeking is within the court's jurisdiction. However, before filing the suit, you should probably send the car dealership an official demand letter and then give them 30 days to correct their failure to pay (or "cure") the contract.
Today's public domain photo: by Robin Waserman, a 2009 picture of two Emperor penguins near Ross Island, Antarctica, part of the National Science Foundation's free photo library.