Monthly Archives: October 2008

Copyright in pre 1978 unpublished works…

Dracula posterCopyright geeks (like me) will enjoy  the  good discussion  of copyright protection for works created before 1978 but not published until after the new copyright act took effect.  Hat tip to Tara Warrington for spotting Leslie Klinger's piece, and a nice analysis, using Bram Stoker's alternate ending for Dracula, as an illustration.

Here's the link to Tara's piece on one of my favorite legal blogs:  The Legal Satricon

Why every writing team should have a written collaboration agreement. (part 3 of 3)

This is the final installment of  a 3-part series on the importance of collaboration agreements for every writing or other creative team.  In Parts 1 and 2, I analyzed some of the important provisions found in properly negotiated and drafted collaboration agreements.  Here, I'll continue that discussion, and explain the advantages of using entertainment lawyer -drafted agreements.

G.  Division of Royalties and other revenues/expenses

Generally, the authors of a collaborative work  share in the Net Income derived from exploitation of the work.  The definition of Net Income, while  sometimes a hotly contested issue in negotiations with third party purchasers, shouldn’t be a major point of contention among collaborators.  It’s usually a relatively simple formula… Income, less expenses and commission equals Net Income, which is then divided according to the agreed splits among the collaborators.

H.  Small/Grand Rights

Since Musical Theatre projects consist of both musical and literary material, it’s important to distinguish between the sources of revenue for the musical components of the work.

Songs, for example may, in addition to being performed as part of the show, be re-recorded by other artists, played on radio, tv, over the internet, etc.

The rights in such non-dramatic performances of musical works are typically referred to as “small performing rights”, while “Grand Rights” refers to performances within the dramatic context of a staged production.

Since there are different sources of revenue, it’s important that the collaboration agreement address the manner of accounting  for each.     As a general rule, the small performing rights are controlled by the lyricist and composer (or their publisher).  The big question, then, is whether the bookwriter/librettist should participate in such revenues, and if so, to what extent?

Other considerations might include  revenues from merchandise focusing on a particular element, say a song-title on a T-shirt, or a lyric printed on a greeting card.

Similarly,  what about subsidiary uses of only a single element.  (i.e., the publication of the book only, or music only?)

Still further consideration should be given to the inclusion of a buy-sell provision.  This would require that if a collaborator wishes to sell his/her interest in the show, the other parties might  have a right of first refusal, last refusal, or even an absolute right to bar the sale to any third party.  As with many provisions of the collaboration agreement, the better spelled-out the mechanisms, time frames, and procedures are, the less likely that misunderstandings will arise.

J.  Resolving Disputes

Historically, parties have relied on court proceedings to resolve disputes that arise out of collaborations… but the expense of such proceedings  is considerable and is often a deterrent to pursuing  the issue.  Many collaboration agreements now contain provisions for less formal methods of dispute resolution, such as mediation, and failing agreement following a mediation, arbitration of the dispute.  Care should be taken to select mediators and arbitrators familiar with the particular industry involved, so you get an informed and meaningful result.

Special Situations with Company-Created Works

While a typical collaboration agreement  can deal adequately with a 2- or 3-member team of collaborators, it is not well suited to the situation of Company Created Works.

A Company Created Work is a  work that is authored by a collective, such as a theatre company, acting class or improv group.    The questions  (ownership, control, merger, division of revenues, etc.) that arise in such situations are similar to those of collaboration, but the way they’re handled can differ greatly.  I’ll make this the subject of a future article.  Stay tuned.

Why agreements should be drafted by an Entertainment Lawyer, and not simply copied from books or the internet.

While there are plenty of “form” collaboration agreements available on the internet, in books, and elsewhere, entering into a collaboration agreement should be looked at in the same way someone would view starting any other new business.  The advice and counsel  of a knowledgeable, experienced entertainment attorney is invaluable in protecting the interests of all concerned.  The cost of preparing such an agreement is negligible compared to the losses that can be suffered if a project is abandoned, or winds up mired in litigation.

Why every writing team should have a written collaboration agreement. (part 3 of 3)

This is the final installment of  a 3-part series on the importance of collaboration agreements for every writing or other creative team.  In Parts 1 and 2, I analyzed some of the important provisions found in properly negotiated and drafted collaboration agreements.  Here, I’ll continue that discussion, and explain the advantages of using entertainment lawyer -drafted agreements.

G.  Division of Royalties and other revenues/expenses

Generally, the authors of a collaborative work  share in the Net Income derived from exploitation of the work.  The definition of Net Income, while  sometimes a hotly contested issue in negotiations with third party purchasers, shouldn’t be a major point of contention among collaborators.  It’s usually a relatively simple formula… Income, less expenses and commission equals Net Income, which is then divided according to the agreed splits among the collaborators.

H.  Small/Grand Rights

Since Musical Theatre projects consist of both musical and literary material, it’s important to distinguish between the sources of revenue for the musical components of the work.

Continue Reading

Why every writing team should have a written collaboration agreement. (part 2 of 3)

This is part 2 in a series of 3 posts about the importance of collaboration agreements to writing and other creative teams.  In part 1, I defined the term Collaboration Agreement, explained why such agreements are important to collaborators, and began exploring the usual terms of the collaboration agreements by looking at copyright ownership of… Continue Reading

Why every writing team should have a written collaboration agreement. (part 2 of 3)

This is part 2 in a series of 3 posts about the importance of collaboration agreements to writing and other creative teams.  In part 1, I defined the term Collaboration Agreement, explained why such agreements are important to collaborators, and began exploring the usual terms of the collaboration agreements by looking at copyright ownership of… Continue Reading

Why every writing team should have a written collaboration agreement. (part 1 of 3)

This is the first in a series of three posts on the importance of collaboration agreements for writing and other creative teams. What is a collaboration agreement? Any time two or more people join together to create a work such as a play, musical, song, screenplay, or any other work of art or authorship, they… Continue Reading

Why Poor Man's Copyright and Creative Commons didn't work out for Quote Unquote Records

Hat tip to Dallas based entertainment lawyer Tamera Bennett for her blog post explaining the need for official copyright registration. (at least to one web-hosting company). Independent label Quote Unquote Records’ website was recently taken down by its web hosting provider, after the label couldn’t produce copyright registration certificates for songs posted on its website in mp3… Continue Reading

Why and How artists MUST take action when their work is infringed.

Every creative person, whether an actor, writer, filmmaker, musician or painter runs the risk of his or her work eventually being copied without permission. While sometimes, this copying is done with a clear profit motive, an increasingly common vector by which unauthorized copies appear is through well-intentioned friends and fans posting an artist’s song, photograph,… Continue Reading

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