California Law
California Arts, Entertainment & Intellectual Property Law
- Arts, Entertainment & Intellectual Property Law
Arts, Entertainment & Intellectual Property Law
Artists and entertainers face various legal issues in contract negotiations, business relations with talent agencies, protecting and controlling creative work, freedom of expression concerns, and business formation. Thus, artists and entertainers frequently find themselves in need of legal advice. In California and around the nation, a growing number of attorneys are practicing in areas of law relevant to artists and entertainers. This chapter provides a brief overview of some of those areas. The Contract Law, Organizing a Business, and Constitutional Law Chapters provide additional information that may be useful to artists and entertainers.
Contracts
Artists and entertainers are constantly making contracts. They may be contracts for performances, consignment agreements, recording agreements, or booking agreements. The following are some of the most common contracts an artist or entertainer is likely to encounter in his or her career.
Shopping Agreement
A shopping agreement is an agreement that an artist or a group of artists (such as a musical band) makes with an agent or manager who then "shops around" trying to find work for the artist(s). A shopping agreement should clearly spell out how long the contract is in effect. The time period should be long enough to give the parties time to evaluate each other, but not so long as to restrict the parties to a clearly unsatisfactory arrangement. A shopping agreement also should state in what manner the agent or manager is to be paid (usually a 10 to 20 percent commission) and who is responsible for expenses.
Management or Booking Contract
When an artist or group of artists is managed and/or promoted by another party, the parties should execute a management or booking contract. The agreement should sufficiently define all the rights and responsibilities of each party. Items of particular importance include specific commitments by the manager or agent to promote the artist's or group's career, the management fee or commission, how the manager or agent will resolve conflicting booking obligations, and how the agreement will be affected if a group changes its name, members, or artistic style.
Performance Agreement
A performance agreement is an agreement between a performer and the organization or person who produces (pays for) the performance. A performance agreement should at least state the basics: who performs, where and when the performance will take place, manner of performance, amount of compensation for the performance, and the manner and form of promotion of the performance. A more detailed agreement may include who will pay attorneys' fees for any disputes and the manner in which disputes will be settled (such as by arbitration or mediation). Performers also should make certain that the person signing the contract is authorized to pay the artist after the performance.
Mutual Release Agreement
Mutual release agreements outline how to manage the legal and financial aspects of an artistic group's break-up. Having a mutual release agreement is especially important if the departure of a member is not voluntary. Important elements include the departing member's right to use the group's material, the departing member's right to future royalties, and which member, if any, has the right to continue using the group's name.
Consignment Agreement
A consignment agreement is an agreement between an artist and an art dealer or gallery owner in which the artist delivers a work of art to the art dealer or gallery owner to sell. Upon selling the artwork, the art dealer usually receives a commission or some other form of compensation. California statutes state that when an artist delivers a work of art to an art dealer for the purpose of exhibition or sale, the acceptance of the work by the art dealer constitutes a consignment unless there is an outright sale. A consignment of art means the art dealer is an agent of the artist for the purpose of sale or exhibition, the art is held in trust by the art dealer and is not subject to the art dealer's creditors, the art dealer is responsible for any damage or loss of art while it is in his or her possession, and proceeds from the sale of the art must be held in trust for the benefit of the artist.
To further protect artists from bankrupt or unscrupulous gallery owners or art dealers, all consignment agreements should be in written form and include the following provisions:
- Schedule for delivering proceeds of the sale
- Value of the artwork (so the artist can be compensated in the event of loss or damage while the artwork is in possession of the art dealer)
- Minimum amount for which the artwork will be sold
- Whether the artist must consent to use or display of the artwork
After delivering the artwork to the art dealer, the artist should affix a tag upon the artwork giving notice that it is being sold on a consignment basis. Or, the art dealer could post a sign in his or her place of business stating that some of the artwork being sold are consignment pieces.
Talent Agencies
A talent agent is any person who procures or attempts to procure employment for an artist in exchange for compensation. Many of the contracts an artist or entertainer makes in his or her career will be through the efforts of a talent agent or talent agency. Unfortunately, there is potential for fraud and abuse in this field. California statutes require that any person who procures, offers, or promises employment for artists or groups of artists must be licensed as a talent agency by the Labor Commissioner of the State of California. Talent agencies also are required to submit to the Labor Commissioner the forms and contracts they will use and their fee schedules.
How to Avoid Talent Agency Con Artists
- Call the Screen Actors Guild for talent agency references
- Be careful of talent agencies that advertise
- Check with the local Better Business Bureau or California Labor Commissioner to see if any complaints have been filed against a talent agency
- Contact the Labor Commissioner for a list of licensed talent agencies in California
Protecting Creative Work
Depending on its form, a creative work can be protected in any of three ways: copyright, trademark, or patent. Copyright protects works of art and literature, trademark protects business identities, and patent covers technological items. The following is an overview of each of these legal tools.
Copyright
A copyright is an exclusive property right granted under federal law to the author of an original work, which prohibits any unauthorized use or reproduction of the work. A variety of things can be copyrighted: literature, drama, music, sound recordings, computer software, advertising copy, motion pictures, choreography, pantomimes, and architectural works. Having a copyright gives the owner the exclusive right to reproduce, distribute copies of, perform, and publicly display the protected work. Not everything can be copyrighted, however. Among things not eligible for copyright protection are ideas, procedures, methods, names, slogans, works not fixed in a tangible form, and works made up of entirely public information, such as standard calendars and height and weight charts.
In 1990, the federal Visual Artists Rights Act (VARA) was passed. This Act applies to paintings, drawings, prints, or sculptures, and amends federal copyright law by providing certain artists with attribution and integrity rights. VARA permits an artist to claim credit for the work he or she has created. The artist also has the right to stop the use of his or her name as the artist of a work if the work is distorted, mutilated, or modified, and credit to such work would be prejudicial to the artist's honor or reputation.
Duration
Copyright protection begins once the work is created; it exists as a by-product of creation. A copyright lasts for the life of the author, plus 50 years. In the case of a joint work, the copyright term lasts 50 years beyond the last survivor's death. For works made during the course of employment, such as a staff-written newspaper article, the copyright term is 75 years from the date of publication or 100 years from the date of creation, whichever is shorter.
Notice and Registration of a Copyright
While there is no requirement to notify the public of a copyright or to register a copyright, it is wise to do both. To provide public notice, the author simply writes three things on the work: (1) the word "copyright," the abbreviation "Copr.," or the symbol ©; (2) the year of the first publication of the work; and (3) the name of the copyright owner. For example, the copyright notice for this Guide is on page ii. By providing notice, the author informs the world that the work is protected and prevents any infringer from saying he or she did not know the work was protected.
Registering a copyright provides several benefits. First, registration creates a presumption the copyright is valid. In addition, copyright registration is a prerequisite to filing a copyright infringement lawsuit, so the owner of the registered copyright will be prepared to enforce its protection. Finally, a properly registered copyright holder may be entitled to attorneys' fees and statutory damages in an infringement case.
Registration of a copyright is relatively simple. Copyright matters are governed and administered by the United States Copyright Office. The Office provides forms for copyright registration, as well as information on copyright in general.
Copyright Infringement
A copyright prevents the unauthorized copying of a protected work. Therefore, the critical issue in any copyright infringement lawsuit is whether the defendant actually copied the original work. A plaintiff can prove copying by direct evidence or, because direct evidence may be difficult to obtain, by a two-part test that shows copying by circumstantial evidence. First, the plaintiff must show the defendant had access to the copyrighted work; second, the plaintiff must show that the copyrighted work and the alleged infringing work are substantially similar. If the plaintiff is successful, he or she may be entitled to actual damages in addition to injunctive relief. As noted, statutory damages and attorneys' fees also may be available if the plaintiff registered the copyright before the infringing acts occurred.
Fair Use
Although a copyright gives its owner exclusive rights, "fair use" of a copyrighted work is not considered an infringement. The fair use doctrine permits use of copyrighted material for research, commentary, criticism, news reporting, teaching, and scholarship. In a dispute over whether use of protected material is fair use, a court will look to the purpose of the use, whether the use was for profit, the amount of the work used, and the effect of the use upon the value of the work.
Trademark
Trademarks protect the identity of a business as recognized by consumers. A trademark is a word, phrase, symbol, or design, or a combination of these items, adopted by a manufacturer or merchant to identify its products and distinguish them from those manufactured or sold by others. Examples of trademarks surround us everyday: the shape of a Coca-Cola bottle, the letters "AT&T," the pink color of Owens-Corning Fiberglass insulation, the image of "Mr. Clean", Walt Disney's Mickey Mouse, the NBC chimes, the Nike "swoosh," and the Jolly Green Giant. Like a trademark, which protects a product, a service mark identifies and distinguishes a company's service.
The purpose of a trademark is to protect businesses from unfair competition. If businesses were allowed to use the same logos and symbols as their competitors, the possibilities for abuse would be enormous. Moreover, consumers would be confused as to which company manufactured which products. With a trademark affixed upon a product, however, the chances for abuse or confusion are significantly reduced.
Trademark rights are created either by using a trademark or by registering the trademark with the United States Patent and Trademark Office or the California Secretary of State. Like a copyright, registering a trademark is not necessary, but it does enhance the owner's rights. For example, if a trademark is federally registered, the owner is entitled to use the trademark nationwide. Registering a trademark in one agency does not register it in another, however. A person who wants trademark protection outside California must register the mark with the Patent and Trademark Office.
In addition to registering a trademark, a person may give notice that trademark rights are claimed. The "»" symbol or the "SM" symbol may be used by anyone to notify the public of the claim. Notice is not required for registration, but use of the registration symbol "¬" is permitted only when the trademark has been registered with the Patent and Trademark office.
Anyone considering adopting a trademark should first have an attorney conduct a trademark search of both state and federal registers to discover if there are already any similar trademarks. If there are, it is best to pick a different trademark to avoid confusion and possible litigation. Trademark litigation can be expensive. Once a person has adopted a trademark, he or she must continue to use it, because trademark protection is lost after two consecutive years of non-use.
Patent
A patent is a right granted by the federal government to an inventor to prevent others from making, using, or selling an invention. The rationale behind the patent is to reward an inventor for his or her contribution to science and for disclosure of the invention to the public. The main benefit of a patent is that it provides the owner a temporary exclusive right to use and benefit from the patent. During that time, the owner can prevent anyone from making the same thing in the same way, even if the second item is made independently. After the patent period has expired, anyone may use the invention.
There are three categories of patents: utility patents, design patents, and plant patents. A utility patent is granted for the invention or discovery of a process, manufacture, machine, composition of matter, or a new or useful improvement. A utility patent is granted for a term of 17 years. A design patent is granted to anyone who invents a new, original, and ornamental design for an article of manufacture. The patent protects the appearance of the article. A design patent is granted for a term of 14 years. A plant patent is granted to any person who invents or discovers and asexually produces any distinct and new variety of plant. A plant patent is granted for a term of 17 years.
Freedom of Expression
Despite the long and distinguished history of the First Amendment of the United States Constitution, freedom of expression is not absolute. To adequately protect themselves from possible litigation, artists and entertainers should be cognizant of the limits of free expression. Speech and other forms of expression that are obscene or that defame others are not protected.
Defamation
Defamatory speech is speech that injures another's reputation or character. Defamation, which can be the basis for a civil lawsuit, is either written (called "libel") or spoken (called "slander"). In defamation lawsuits, private citizens are treated differently than public figures. A private citizen simply must prove that the defendant conveyed false information to make a case of defamation. A public figure must prove not only that the information was false, but that the speaker or publisher knew the information was false and spoke or published it anyway, or that the speaker or publisher released the information with a reckless disregard for the truth.
There are two principal defenses to defamation: truth and consent. Generally, if a statement is true it is not actionable, even though it may have harmed someone's reputation. Similarly, if a person consented to the transmission or publication of defamatory information, he or she cannot sue for damages. Thus, an opinion cannot ordinarily be the basis for a defamation suit.
When determining damage awards in defamation cases, courts tend to take into account the number of persons who heard or read the defamatory information. Because damage to reputation is the basis for the award, the greater the number of persons, the greater the damage award. Usually, it is not possible to pre-empt the release of potentially defamatory information (a person cannot go to court to stop the publication of a magazine article, for example). However, the threat of a lawsuit upon release of defamatory information tends to encourage the release of only truthful material.
Obscenity
Material that has been deemed obscene may not be produced or distributed. It also is illegal to participate in an obscene performance if a person knows or should know that the performance material is obscene. State law imposes criminal penalties for possession, creation, or distribution of obscene materials. Determining just what is obscene, however, has long been a difficult task. In 1973, in the case of Miller v. California, the United States Supreme Court settled upon the following test to determine obscenity: (1) the average person applying contemporary standards would find that the work, taken as a whole, appeals to a prurient interest in sex, (2) the work portrays sexual conduct in a patently offensive way, and (3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Many people find this test vague. Experience has shown that whether a particular work is found to be obscene often depends upon the judge or jury deciding the case. As a result, the line between acceptable sexual material and obscenity remains somewhat blurred. Artists and entertainers should be aware that what they consider "art" may, in some instances, be considered obscene material under the law.
Resources
To order copyright registration forms from the United States Copyright Office, call (202) 707- 9100. To speak to a copyright specialist, call the Copyright Public Information Office at (202) 707-3000 between 8:30 a.m. and 5:00 p.m., eastern time, Monday through Friday, except federal holidays. In addition, frequently requested Copyright Office circulars, announcements, and regulations are available on the Internet. These documents may be examined and downloaded through the Library of Congress campus-wide information system LC MARVEL which can be reached through Telnet (marvel.loc.gov), Gopher (marvel.loc.gov), and the World WideWeb (http://www.lcweb.loc.gov/copyright).
For information about patent or trademark registration, contact the United States Patent and Trademark Office, Washington, DC 20231, (703) 308-HELP or (703) 557-INFO (automated); TDD (703) 305-7785.
For state trademark information, contact the California Secretary of State's Office, 1500 11th Street, Sacramento, CA 95814 (916) 653-6814, fax (916) 653-4620.
There are several Patent and Trademark Depositor Libraries in California at which searches for existing patents or trademarks may be done:
- Public Library, Los Angeles, (213) 228-7220
- California State Library, Sacramento, (916) 654-0069
- Public Library, San Diego, (619) 236-5813
- Patent Information Clearinghouse, Sunnyvale, (408) 730-7290
Volunteer Lawyers for the Arts (VLA), 1 53rd Street East, New York, NY 10022, (212) 319-2787, provides legal and other information to artists, and is a good source for publications, including The Musician's Business and Legal Guide, VLA Guide to Copyright for Musicians and Composers, A Writer's Guide to Coyright, The Writer's Legal Companion, The Rights of Authors, Artists, and Other Creative People, VLA Guide to Copyright for the Performing Arts, VLA Guide to Copyright for Visual Artists, Licensing Art and Design, and Trademark: How to Name a Business and Product. VLA maintains an Art Law line to assist artists with legal problems and lawyer referrals at (212) 319-2910.
The State Bar of California also publishes information of interest to entertainers and artists, including Directions (methods and techniques for dealing with the print and electronic media), which is available for $5; State Bar of California Reporter's Directory (legal resources for the media and a roster of state bar leaders in various areas of the law); and New Matter (quarterly newsletter covering current issues and developments, cases and legislation in intellectual property law). For ordering information, call (415) 561-8280.
Other state and national organizations have been formed around issues of interest to artists and entertainers:
Beverly Hills Bar Association, Barristers Committee for the Arts, 300 Beverly Drive South #201, P.O. Box 7277, Beverly Hills, CA 90212-7277 (310) 553-6644, fax (310) 284-8290.
California Lawyers for the Arts (CLA), Fort Mason Center, Building C #255, San Francisco, CA 94123 (415) 775-7200, fax (415) 775-1143; 1549 11th Street #200, Santa Monica, CA 90401, (310) 395-8893, fax (310) 395-0472; 247 Fourth Street #110, Oakland, CA 94607, (510) 444-6351.