Press "Pause" On That Recording

Dear GG Arts Law:

In reviewing an engagement contract for one of my artists, I was surprised to see that the presenter wants the right to record the artist’s performance as a “work-for-hire”. The Presenter says that this is a standard requirement and also that its reasonable because my artist is protected by language in the contract that says: “In no event shall Producer have the right to exploit the recordings and/or an audiovisual program in connection therewith in any other manner other than non-commercial, educational and/or charitable uses or exhibitions without Artist’s prior written approval and without a separate agreement, negotiated in good faith with respect to any such uses or exploitation thereof.” Is this standard these days? Should I advise the artist to agree to this?

Standard for whom? As I have said, and will keep repeating until someone listens, no terms are “standard”—not recording rights, nor commissions, nor exclusivity restrictions, nor unilateral cancellation rights, nor any other nonsense which parties like to throw at one another under the banner of “standard.”

While, ultimately, it’s your artist’s decision, not yours, you should advise your artist not to agree to the language the presenter has proposed. The proposed language reflects a common mistaken belief within the performing arts part of the entertainment industry that so long as you don’t sell a recording, then all other uses are inherently “non-commercial.” However, particularly in the classical world where a classical recording hasn’t actually generated a profit since the release of “Fantasia”, no one really “sells” recordings anymore—at least, not for a profit. This means that, except in limited situations, there really are no practical uses or exhibitions for recordings other than “non-commercial, educational and/or charitable uses or exhibitions.” This further means that if you were to agree to the proposed terms, the presenter could do just about anything they wanted with your artist’s recording. Their proposed “protection” is meaningless.

Just because a recording isn’t sold, is unprofitable, is used for education, or is used by a non-profit organization does not make it inherently “non-commercial” or valueless. A recording still has value. Using a recording to promote the presenter or further a presenter’s mission provides value to the presenter which the presenter has not paid for. Otherwise, why does the presenter want it in the first place? Presenters need to stop believing that just because they engage an artist and pay for the artist’s performance then that also includes the right to record the artist’s performance and “own” the recording. In the real world, you only get what you pay for. When you buy a car, does it come with a chauffeur? It’s not merely presumptuous, but it completely demeans the value of the artist’s work—which, quite frankly, happens all too often these days by the same parties who should know better.

In addition, an artist always needs to be able to control how the artist is seen and heard. A poor recording of a brilliant performance could have devastating impact on an artist—particular a young or developing artist. Even a good recording, if released in its entirety, could limit an artist’s ability to release a recording of the same work in the future if it has already been made available for free.

While I generally have no objection to a recording being made, it’s the uses of and rights to the recording that need to clearly defined—and limited. First and foremost, unless the engagement fee includes an additional fee for “ownership” of the recording or the opportunity to perform with a particularly presenter is of such magnitude as to provide additional value to the artist, then the whole concept of a “work for hire” should be off the table. Instead, if anything, the presenter should only be able to use limited excerpts of the recording for limited purposes. Just as importantly, the artist should be always able to approve any recording to make sure that the artist is pleased both with her performance as well as with the quality of the recording itself. Third, whatever rights are granted to the presenter in an artist’s recording, should be granted to the artist as well. If the presenter gets the right to make and use a recording, then the artist should get a copy for the artist’s own promotional and marketing purposes as well. Any restrictions or approvals should be mutual.

A Tribute To Copyright Infringement

By Brian Taylor Goldstein, Esq.   

Dear Brian and Robyn: 

Could you please advise how a copyright application would be filed for a tribute musical of deceased popular singer? The show would consist of all of his songs. Would it be better to file it as a compilation or concert? Can all the songs be included in one application? Thank you

Is this, by any chance, the long awaited musical “Indian Love Call”, a tribute to the intoxicating sounds of Slim Whitman? I heard there’s a lost studio recording somewhere featuring Slim Whitman, Tiny Tim, Axl Rose, and Celine Dion performing a cover of “Total Eclipse of the Heart.” It would make a great Act I finale.

For most musicals, a copyright registration application would include the book, music, and lyrics written by the authors. However, tribute musicals such as Mamma Mia, Jersey Boys, All Shook Up and Beautiful, which are also known as “jukebox” musicals, are different in that they typically feature works which has been previously performed and composed by others. The authors and creators of such musicals must license all the music from the original composer or composers. This gives them the rights to use the music and lyrics in the musical, and usually to record a cast album, but gives the creators of the musical no ownership rights in the individual works themselves. You cannot claim copyright ownership, or file a copyright registration, with regard to any material that is not original or which you do not either own or create yourself.

Producing a tribute musical about a singer can pose a number of additional challenges in that, unless the singer also wrote the music he sang, you would need to obtain licenses from the publishers and composers of the songs the singer performed. In addition, the name, appearance, or costume of the deceased singer might be considered trademarks controlled by his estate.

If your production is a scripted musical (ie: with a story, plot and characters), as opposed to a concert, then you could claim a copyright in the book and spoken dialogue, and, perhaps, the order in which the music was performed, but not in the music and lyrics themselves. Even arrangements or orchestrations would need to be licensed from the original composers and could not be included in your copyright registration unless your license agreement permitted you to do so.  If your production is actually more of a tribute concert, then there may actually be very little you can copyright or own.

The whole point of registering a copyright is to claim ownership and stop others from copying or infringing your work. However, in the field of tribute performances, there may actually be more the publishers or composers of the music and the estate of a deceased singer can do to stop you than you can do to stop others. Remember, a “tribute” is not a magic word that means “copyright or license free.” The entertainment field is littered with the carcasses of concerts and performances that were stopped because the subject of a tribute did not like, want, or approve the gesture. In any artistic venture, before investing the time, talent, and energy it takes to create and protect your work, you first want to make sure you are not improperly using the time, talent, and energy of other artists that came before you.