Wants to Blu-Ray School Band Concerts

Dear Rich: I’d like to do multi-camera recordings of local high school band concerts and choir concerts.  I think I’m entering new territory by recording and possibly streaming the concerts. All proceeds from the selling of DVDs and Blu-ray discs go back to the school’s programs. I won’t be making any money off these endeavors. What kind of permissions do I need to secure? Do I need to contact the publisher for each piece that is performed? The correct legal answer is that yes, you would need to contact the publisher for each piece and get a sync license (we talk about it here), as well as permission from the school band performers and conductors (to avoid right of publicity claims). Since sync licenses are so difficult to obtain, we believe you can probably protect yourself just as well by getting a mechanical license instead of sync license. (Mechanicals are used only for audio recordings, syncs are for audiovisual recordings.) That would deflect any disgruntled publishers ... though we doubt any would want the negative publicity resulting from a brouhaha with a high school band.
Practically speaking ... If you are only selling the disks locally to members of the community, you can probably forego most of the permissions mentioned above. (It's what often happens when a tree falls in the intellectual property forest.) It may help to have something in writing (emails are fine) between you and the school that indicates you have their permission for your endeavor. If you intend to sell to a broader audience, you will probably need to get the permissions discussed above (and described in detail in the Getting Permission book.)

Can We Get Out of Record Deal?

Dear Rich: I am in a band and last year we signed a distribution and publishing agreement which has turned into an absolute mess. I used to sing in the band but subsequently have found myself less our singer and more our copyright lawyer. I am better at singing. Our agreement made us solely responsible for paying for and producing the master recordings - we did. The label's responsibility was in providing marketing, booking, and distribution - they didn't. As a result we told them they were in breach of contract and gave them a 60 day notice letter wherein they had 60 days to remedy their non-performance or be in breach and the contract would be terminated. The confusing part is that they then proceeded to put our recording up for sale through physical and digital means. We told them to stop selling based on the fact that no separate "Exclusive Co-Publishing Agreement" was ever reached. Below is an excerpt from our agreement outlining the publishing deal (names changed, Sub=band, Company=label): 

 You hereby agree to grant and assign to Company affiliated publishing company, Mr Publisher (ASCAP) a division of Mr Publisher Media Group LLC a 50% copyright and performing rights interest less collection fees and 100% administration rights in and to each musical composition written, owned or acquired by you during the term of this recording agreement ("Compositions"). In connection therewith, you agree to enter into a separate Exclusive Co-Publishing Agreement with Mr Publisher (ASCAP), the terms of which shall be negotiated in good faith, but which shall include the right of Mr Publisher (ASCAP) to administer the Compositions throughout the world and may elect to charge an administration fee of (ten 10%). Should Company and Sub decide to terminate this agreement all rights of copyright will revert back to Sub unless Company can prove substantial progress in its tenure of administering compositions. 

Since we are splitting the copyright does that mean they are able to continue selling our music without our permission? Are we able to register our masters with the copyright office on our own given they have a 50% stake? So confused... Whenever the Dear Rich Staff gets a long letter that includes excerpts from a contract, our first thought is usually, "Get thee to an attorney." We think that's the proper course of action in this case. Here's why:
The cure letter. If your basis for claiming breach of contract was a failure to market, book and distribute the band, then by providing the "cure" letter you gave the company 60 days to correct those omissions. If the label failed to market, book and distribute within 60 days of your letter, the agreement is terminated. Putting the music up for digital and physical sale isn't enough to cure. The label needs to demonstrate an effort to market and book the band, too (and correct any other omissions mentioned in your cure letter). If not cured, the label is in breach and your grant (assignment) of publishing rights would be terminated as well. In other words, terminating the record deal for breach would allow you to retain all of your publishing rights and there would be no reason to execute a written publishing agreement.
Get out of it! So, you should stay focused on ending the contract  which, by the way, seems a bit lopsided (welcome to the music business). As we understand it, you pay to produce the album and you give up half of your publishing. The label doesn't seem to be taking any risk. After all posting a recording is easy, and creating physical CDs can be done without much of a financial commitment. So, unless the label has an impressive track record with other artists, you'd do best to pool your money, hire a lawyer and make sure the agreement is fully terminated quickly. The annoyingly difficult part is getting the label to take down the music it has posted for sale. In conjunction with getting an attorney, you should also register your music at the Copyright Office and with a performing rights society. And of course, another reason to check with an attorney is that we could be completely wrong about all of this. A second opinion will help.
Hiring a lawyer. If paying for a lawyer is a challenge, find out if there's a volunteer lawyer for the arts service near you.

Illustrating Book About Chinese Zodiacs

Dear Rich: I'm an artist and my friend is a writer. She wants me to illustrate her book on Chinese zodiac astrology. My art would be heavily displayed in the book. How do we work out my getting paid for my art? Do I charge her a flat fee or take a cut of the earnings? Consider the following questions before proposing anything to the writer.
Is the artwork supplementary or essential? If the artwork is an essential part of the purchasing decision -- as in a home decorating or children's picture book -- that would be more likely to justify a cut of the earnings. If the illustrations simply supplement the writing (as in most nonfiction books), flat fees are more common.
How much time will it take and what is your time worth? Estimate the number of hours per drawing. If you were billing an anonymous client for the same work, what would you charge? This would be your starting point in determining what you want to earn back (though of course there may a steep discount for your friend). The Graphic Artists Guild Handbook provides assistance with pricing.
How likely is it that the book will be distributed by a commercial publisher? If this work will be the subject of a book deal, the typical advance (assuming there is one) for a nonfiction book would be between $3,000 and $10,000 (though others indicate these advances are higher; we don't think that's an accurate reflection of today's marketplace). Royalties would be 5 to 10% of the book's income but would only be paid after the advance has been earned back. Nonfiction books usually have a sales life of 12 to 14 months. If a book deal is in the works, and you feel you are entitled to a cut of the earnings, you should seek to become a party to the publishing contract. Otherwise, you must rely on the writer to receive the income and then forward your payment.
What does your friend want to do? Because you're dealing with a friend -- not an anonymous client -- we'd like to see you work out an arrangement that doesn't jeopardize your personal relationship. You could propose a two-tiered system -- for example a reduced flat fee but an additional payment if a book deal is signed.
What about the rights? Are you transferring copyright ownership? Do you want to retain certain rights so that you can continue to use, sell or display the artwork. Determining rights may affect the price. For example, if you would like the right to sell limited edition prints, or to advertise those prints in the book, you might want to adjust your fees accordingly.

Rules for Reproducing Copyrighted Evidence

Dear Rich: I'm filing my first pro se case for copyright infringement. Is it fair use to make a copy of something to use as a evidence (or exhibit) in court. Courts typically consider it a fair use when copyrighted material is reproduced for a court proceeding. Here are some examples:

• The Second Circuit ruled that it was a fair use to reproduce a series of web essays as supporting evidence. 
• A New York district court reached a similar result when copyrighted videos were introduced as evidence. 
• A Michigan federal court also reached the same fair use conclusion when construction photos were introduced into evidence. 
• The Tenth Circuit excused copying of a copyrighted work for litigation purposes as a fair use in 2007. However, the Tenth Circuit refused, unlike the Ninth and Second Circuits, to establish a fixed rule that such uses, by their nature, are a fair use. Instead, each case should be judged on its merits.
• The Ninth Circuit has stated that the use of copyrighted material as evidence in judicial proceedings is fair use, so long as the users do not reproduce the work for its “intrinsic purpose.” 

What's an "intrinsic purpose?" It's a use that is for the same purpose as the copyright holder intended. For example, it was not a fair use when one party copied photos after it refused to pay the $15 per photo fees incurred by a trial evidence firm that had prepared the photos for litigation. In other words, the photos were prepared for the litigation and one party sought to avoid paying for their preparation.
PS. Good luck with your pro se case. (Here's the strategy that the lawyers on the other side will use against you.) 

Wants to Use Bruno for Hair Salon

Dear Rich: I have set up an upmarket ladies hair salon called Bruno's Kuafor, and used Sacha Baron Cohen's satirical character Bruno as the inspiration. We actually use one striking image of the character all over our marketing literature. The logo is our own. The whole theme works brilliantly, and I did have it in mind to contact him to help the promotion, or even give him some financial share or incentive. But we are in Istanbul, so we are a long way away, and we didn't get round to it. And now a friend wants to open a branch in New York. What can I get away with, what should I do, is this a good time to contact Mr. Cohen or his agent to license the image of his dead character, or indeed try and get Mr Cohen involved more directly? We love the image, it is one that was used widely to promote the film Bruno, we just lifted it off the internet. We're not sure about Turkish law, but under U.S. law, you will need permission from the company that owns the rights to the Bruno character, as well as from Sacha Baron Cohen, whose image is used to promote your salon. That's because the use of the character and the actor's image triggers violations of copyright law (using images from the film), trademark law (the character may have acquired trademark status), and the right of publicity (the right of a person to control the use of his or her image for commercial purposes). Obviously, the more successful you become, the more likely you will need permission ... which is a bit of a Catch 22 because by seeking permission, you're alerting the company as to your use. If you do decide to seek permission, we believe the place to start would be Four By Two Films, the production company owned by Cohen and responsible for his movies and TV shows.

Is Permission Needed to List Websites in Book?

Do I need to get permission to list websites in a published book? All the websites I wish to include are accessible through Google. Do I need to deal with each site for permission or do I need to deal with Google? You don't need to deal with either; no permission is required when providing the name or publicly-accessible URL (web address) for any website. You may only run into problems listing websites if you are encouraging illegal activity by knowingly listing or linking to sites that promote bad stuff -- for example, child porn sites, sources of illegal downloads, or sites that are exposing confidential information or invading privacy.

Can You Really Protect a Cartoon Character with Copyright?

Dear Rich: In response to your recent post on whether you can patent a cartoon character ... You can trademark a cartoon character. However, you can't actually copyright a character. You can copyright a story (either prose or illustrated) or an illustration featuring the character. A number of companies have discovered to their sorrow that unless stories featuring the characters have their copyrights renewed, those stories (even with trademarked characters) fall into the public domain. Examples of this are the first Superman novel, Adventures of Superman by George Lowther, the Fleisher Brothers' Superman, Betty Boop, and Popeye cartoons, and the Flash Gordon and Buck Rogers movie serials among many others. We think you are on the right track -- You can register text describing the character or an image of the character but you cannot simply register the copyright for a character. However, regardless of whether you can register the character per se, copyright law will protect the character separately from the underlying text or story from which it evolved. So, even when an underlying work falls into the public domain, the copyright for the character may not. For example, when several strips of the Superman comic fell into the public domain in a 1952 case, a court ruled that the character of Superman did not. On the other hand, if all of the works embodying an author's character have fallen into the public domain, for example -- The Grimm Brothers' Snow White character -- then the character is free for all to use. Things get confusing when there is a dispute as to whether all of the author's works are in the public domain as is the case with Sherlock Holmes.