This Business of Music : The Definitive Guide to the Music Industry

by KRASILOVSKY, M. WILLIAMSHEMEL, SIDNEY

• ISBN13: 9780823077281
• ISBN10: 0823077284
• Edition: 9th
• Format: Hardcover
• Copyright: 2003-06-01
• Publisher: Billboard Books

Summary

This new edition addresses such important issues as the implication of MP3, the Copyright Term Extension Act, union treatment of digital music, and much more.

Author Biography

M. William Krasilovsky is an attorney specializing in music and copyright issues. Educated at Cornell University and Cornell Law School, he has been a trustee of the Copyright Society of America and has served as music counsel to Warner Music and special music counsel to the United Nations and UNICEF. As an adjunct professor at New York University and the State University of New York, Mr. Krasilovsky has taught courses on the music business and on ethical issues important to the entertainment industry. He is a contributor to Continuum Encyclopedia of Popular Music of the World and to legal and entertainment journals, and has lectured at universities and bar associations across the country. The work of co-author Sidney Shemel, who died in 1994, was of inestimable value in preparing the first six editions of this book and is still very much a part of the present text. Mr. Shemel (B.A., Columbia College; LL.D., Columbia Law School) was Vice President-Music of MGM-UA and Vice President and legal counsel to the United Artists Corporation's record companies and its domestic and international music publishing subsidiaries. John M. Gross is an attorney in New York City with a general entertainment practice and a specialty in music law. A graduate of Harvard College and Harvard Law School, Mr. Gross served as Vice President and General Counsel of the Entertainment Division of Commonwealth United Corp. and later became a partner in the law firm of Arrow, Edelstein and Gross, P.C.

Table of Contents

Introduction	xvii
Part One Music Business Trends and Transformations	1	(8)
The Music Industry in the 1990s	3	(6)
Industry Growth	4	(1)
Factors Relating to Growth	5	(2)
Factors Inhibiting Growth	7	(1)
Legislative Changes	8	(1)
Part Two Record Industry Agreements and Practices	9	(72)
Recording Artists Contracts	11	(16)
The Standard Agreement	11	(1)
Duration	12	(2)
Group Artists	14	(1)
Exclusivity	14	(1)
Recording and Release Requirements	15	(1)
Artist Royalties	16	(3)
Recording Costs	19	(1)
Recording Funds	20	(1)
Publishing Rights	20	(1)
Controlled Compositions	21	(1)
Tour Support	22	(1)
Video Rights	22	(1)
Assignment	23	(1)
Ownership and Use of Masters	23	(1)
Coupling	24	(1)
Accountings and Defaults	24	(1)
Bankruptcy	25	(2)
Contracts with Minors	27	(3)
Disaffirmance of an Agreement	28	(1)
Ratification of an Agreement	28	(1)
Statutory Provisions of Contracts with Minors	28	(1)
Parents' Guarantee of Contract Performance	29	(1)
Independent Record Producers	30	(9)
The Role of the Independent Record Producer	31	(1)
Label Deals and Pressing and Distribution Deals	31	(1)
Producer Royalties	32	(1)
Recording Funds	33	(1)
Production and Development Deals	34	(2)
Producer Fees	36	(1)
Music Publishing and Follow-up Rights	36	(1)
Contractual Safeguards	37	(2)
Foreign Distribution Agreements	39	(10)
Royalty Provisions	39	(1)
Advances and Guarantees; Term	40	(1)
Exclusivity	41	(1)
Broadcast Performance Fees	42	(1)
Music Publishing	43	(1)
Labels	43	(1)
Release Requirements	43	(1)
Record Clubs	44	(1)
Coupling	44	(1)
Cover Recordings	44	(1)
Samples and Materials	45	(1)
Accountings and Auditing	45	(1)
Termination Procedure	46	(1)
Variations in Currency Values	46	(1)
Transmittal of Funds	47	(1)
Jurisdiction over Disputes	47	(1)
Default Clauses	47	(2)
Labor Agreements	49	(10)
Key Labor Agreements	49	(1)
Arbitration	50	(1)
AFTRA and AFM Scale Payments	50	(1)
AFM Special Payments and Trust Funds	51	(2)
AFTRA Health and Retirement Funds	53	(1)
Retirement and Death Benefits	53	(1)
Royalty Performers	54	(1)
Contractors	55	(1)
Dubbing	56	(1)
AFM and AFTRA Scales for New Media	56	(1)
Protections against Illicit Practices	56	(2)
Domestic and Foreign Territory	58	(1)
Other Income for Artists	58	(1)
Copyright in Sound Recordings	59	(10)
Copyright Protection for Published and Unpublished Works	59	(1)
Authorship	60	(1)
Rights of the Copyright Owner	60	(1)
Copyrightable Works	61	(1)
Foreign Sound Recordings	62	(1)
Sampling	63	(1)
Master Licensing	64	(1)
Audio Home Recording Act	64	(1)
The Digital Performance Right in Sound Recordings Act of 1995	65	(2)
The Digital Millennium Copyright Act of 1998	67	(2)
Bootlegging, Piracy, and Counterfeiting	69	(5)
Federal Legislation	70	(2)
Compulsory License for Sound Recordings	72	(1)
International Treaties Regarding Piracy	73	(1)
Record Covers, Labels, and Liner Notes	74	(7)
Album Titles	74	(1)
Illustrations	75	(1)
Recording Identification	76	(1)
Trademarks	76	(1)
Anticounterfeit Practices	76	(1)
Warning Stickers and Censorship Issues	77	(4)
Part Three Music Publisher and Writer Agreements and Practices	81	(210)
Copyright Law in the United States	83	(20)
Copyright Revision, 1790 to 1976	83	(1)
The Copyright Status of Sound Recordings	84	(1)
Common Law Copyright	84	(1)
Statutory Copyright	85	(1)
Copyright Registration	86	(2)
Registration of Published and Unpublished Works	88	(3)
The Copyright Notice	91	(1)
The Deposit of Copyrighted Works	92	(1)
Transfers of Copyright Ownership	93	(1)
Errors in the Copyright Notice	94	(1)
The Correction of Errors	95	(1)
Fair Use	95	(2)
Copyright Protection of Song Titles	97	(1)
Compulsory Mechanical License for Recordings	98	(1)
Record Rentals	99	(1)
Jukebox Public Performance Fees	99	(1)
Copyright and Cable Television Transmission	100	(1)
Licensing for Noncommercial Broadcasting	101	(1)
Satellite Carrier Compulsory License	102	(1)
The Duration of Copyright Protection	103	(11)
Term of Copyright Protection	103	(1)
The Supreme Court Decision on the Sonny Bono Copyright Term Extension Act	104	(1)
The Duration of Copyright	105	(1)
End-of-Calendar-Year Copyright Computation	106	(1)
The Duration of Copyright Protection for Joint Works	106	(1)
The Determination of Date of Death	107	(1)
Copyright Renewal	107	(2)
Termination of Transfers	109	(4)
Duration of Copyright and Protection Outside of the United States	113	(1)
The Uses of Public Domain	114	(9)
Works in the Public Domain	115	(1)
The Purposes of Public Domain	116	(2)
Determining the Public Domain Status of Works	118	(3)
Copyright Registration of New Versions and Arrangements of Works	121	(2)
Arrangements and Adaptations	123	(10)
Head Arrangements of Compositions	123	(1)
The Copyrighting of Arrangements	124	(1)
The Statutory Treatment of Arrangements	125	(1)
No Effect on Duration of Basic Work	125	(1)
Standards of Originality	126	(2)
Derivative Works	128	(2)
Sound Recording Sound-Alikes	130	(1)
The Arrangement of Works in the Public Domain	130	(1)
Foreign Treatment of Arrangements and Adaptations	131	(2)
Performing Rights Organizations	133	(20)
Performance Monies and the World Economy	134	(1)
Clearing Functions	134	(2)
American Society of Composers, Authors, and Publishers (ASCAP)	136	(1)
Broadcast Music Inc. (BMI)	137	(1)
Society of European Stage Authors & Composers (SESAC)	137	(1)
Title Registration	138	(1)
Surveying Procedures	139	(2)
Grievance Procedures	141	(1)
Membership	142	(1)
The Fairness in Music Licensing Act of 1998	143	(1)
The ASCAP Payment System	144	(1)
The BMI Payment System	145	(2)
Loan Assistance	147	(1)
Insurance Plans	148	(1)
Writer Awards	149	(1)
Foreign Collections	149	(2)
Dramatic Performance Rights	151	(2)
Mechanical Rights	153	(9)
Parting with Possession; Returns	154	(2)
Notice of Intention	156	(1)
Compulsory License Accountings	156	(1)
Copyright Owner Identification	156	(1)
Negotiated Licenses	157	(1)
The Harry Fox Agency	157	(1)
Other U.S. Mechanical Rights Organizations	158	(1)
The Canadian Mechanical Rights Organizations	159	(1)
International Mechanical Rights Societies	159	(1)
The Writer's Share of Mechanical Fees	160	(1)
Record Clubs	160	(1)
Title Use Restrictions	161	(1)
Record Rentals	161	(1)
Songwriter Contracts and Royalty Statements	162	(14)
Duration of Copyright Assignment	162	(1)
Songwriters Guild Contracts	163	(1)
Copyright Divisibility	164	(1)
Royalty Statements	165	(1)
Recapture of Rights	165	(1)
Printed Editions	166	(1)
Sheet Music Sales	167	(1)
Mechanical Rights	167	(1)
Accountings and Audits	168	(1)
Default	169	(1)
Performance Fees	170	(1)
Assignments	171	(1)
Lyrics versus Music	171	(1)
Royalties Held in Trust Funds	172	(1)
Arbitration	173	(1)
Exclusive Writer Agreements	173	(3)
Works for Hire	176	(6)
Factors Determining a Work-for-Hire Relationship	177	(1)
Commissioned Works	178	(2)
Assignments of Copyright	180	(1)
Joint Work Status	180	(2)
Co-Ownership and Joint Administration of Copyrights	182	(6)
Registration and Notice	182	(1)
The General Rights of Co-Owners	183	(1)
The Problems of Co-Ownership	183	(1)
Synchronization Rights	184	(1)
Foreign Rights	184	(1)
Consent by Silence	185	(1)
Restrictions on Assignment	185	(1)
The Writer's Interest in Co-Ownership	185	(1)
The ``Cut-In''	186	(2)
Copyright Infringement	188	(13)
Proof of Access to a Copyrighted Work	188	(1)
The Use of Music in the Public Domain	189	(1)
Vicarious Liability	190	(1)
Who May Sue for Infringement	191	(1)
Civil Remedies for Infringement	191	(2)
Court Costs and Attorney Fees	193	(1)
Criminal Remedies for Infringement	194	(1)
Mechanical Right Infringement	195	(1)
Infringement by Importation	195	(1)
Copyright Registration	196	(1)
The Recordation of Copyright Transfer	197	(1)
Time Frame for Legal Actions	197	(1)
Sampling and Copyright Infringement	197	(4)
International Copyright Protection	201	(5)
The Berne Convention	201	(1)
The Effects of Berne Adherence	202	(1)
Trade Negotiations and GATT	203	(1)
U.S. Trade Representative	204	(1)
Geneva Phonogram Convention	204	(1)
WIPO Treaties	204	(2)
Foreign Publishing	206	(16)
The World Market for Music	207	(1)
Representation by Subpublishers	208	(1)
Foreign Performing Rights Societies	208	(1)
Foreign Mechanical Licensing	209	(2)
Synchronization Fees	211	(1)
Printed Editions	212	(1)
Local Lyrics and Versions	212	(1)
Local Writer Royalties	212	(1)
Copyright and Term of Rights	213	(1)
Fees from All Usage, Accounting, and Audits	214	(1)
Subpublication for Diverse Territories	215	(2)
The European Union	217	(1)
Default Clauses	217	(1)
Jurisdiction over Disputes	218	(1)
Catalog Agreements	218	(1)
Local Firms	218	(1)
Joint Firms	219	(1)
The Termination of Joint Ownership	220	(2)
The Writer as Publisher	222	(4)
Writer-Publisher Joint Firms	223	(1)
Self-Publishing	223	(2)
Sources of Copyrights for the Self-Publisher	225	(1)
Music for Motion Pictures	226	(9)
Rights Required for Films	227	(1)
Employee-for-Hire Agreements	227	(1)
Synchronization and Performance Licenses	228	(1)
Licensing Agents and Research Firms	229	(1)
Videos and DVDs	230	(1)
Music Publishing Rights	231	(1)
Recording Artist Royalties	231	(1)
Soundtrack Album Contracts with Record Companies	232	(1)
Component Parts of Films	233	(1)
Performances in Europe	233	(2)
Licensing Recordings for Motion Pictures	235	(3)
The Protection of Recordings	235	(1)
The Consent of the Music Publisher	236	(1)
Union Reuse Fees	236	(1)
Artist Contract Restrictions	237	(1)
Soundtrack Albums	237	(1)
Music for the Theater	238	(9)
The Rights of Producers and Writers	238	(3)
Original-Cast Albums	241	(1)
Subsidiary Rights	241	(1)
American Productions Abroad	242	(1)
Writing a Show	243	(1)
Music in Dramatic Shows	243	(1)
Investment in Musical Theater	244	(2)
Sources of Investment	246	(1)
AFM Union Scale	246	(1)
Commercial Jingles	247	(8)
Uses of Music in Commercial Jingles	247	(1)
Payments for Music Used in Commercials	248	(2)
Negotiations for Licensing Fees	250	(1)
Warranties and Indemnities	251	(1)
The Packaging of Jingles	252	(1)
Payments to Singers and Instrumentalists	253	(1)
The Simulation of an Artist's Style in Jingles	253	(2)
Buying and Selling Music Publishing Companies and Record Companies	255	(16)
The Buying and Selling of Catalogs	255	(1)
Large Catalogs	256	(1)
Factors to Consider	257	(1)
Smaller Catalogs	258	(1)
Sources of Individual Copyrights	258	(1)
Renewal and Reversion Rights	259	(1)
The Purchase of Assets or Stock	260	(1)
The Price of Purchasing a Copyright	261	(1)
Users of Copyrights	262	(1)
Capital Gains	263	(1)
Due Diligence	263	(2)
Buying and Selling Record Companies and Masters	265	(1)
Consolidation	265	(2)
Factors to Consider	267	(1)
Due Diligence	268	(3)
Loans to Music Publishers	271	(12)
The Special Risks in Loans to Music Publishers	272	(1)
The Amount of a Loan	273	(1)
Copyright Search Report	274	(1)
The Recordation of Loans in the Copyright Office	275	(1)
The Recordation of Loans in Local Jurisdictions	276	(1)
Sale of Property upon Default	277	(1)
Exclusive State Recordation for Certain Rights	277	(1)
Exclusive Writer Contracts	277	(1)
Conditions on the Administration of a Loan	278	(1)
Outstanding Advances at the Time of a Loan	279	(1)
The Appraiser's Report and Representations of the Borrower	280	(1)
The Bankruptcy of the Borrower	281	(2)
Printed Music	283	(8)
Writer Royalties	285	(1)
Print Publishers	285	(1)
Specialty Folios	286	(1)
Notice of Copyright	287	(1)
Fakebooks	287	(1)
Return Privileges and Reserves	288	(1)
Discounts	288	(1)
Subpublishing Deals	289	(1)
The Internet: Digital Sales and Distribution	289	(2)
Part Four Other Aspects of the Music Business	291	(124)
Privacy and Publicity Rights	293	(7)
The Right of Privacy	293	(3)
The Use of Name or Likeness for Trade or Advertising	296	(1)
Privacy Contract Clauses	297	(1)
Works in the Public Domain	298	(1)
Remedies for the Invasion of Privacy	299	(1)
The Protection of Ideas and Titles	300	(4)
Compensation for Ideas	300	(1)
Issues of Concreteness and Originality	301	(1)
The Consideration of Unsolicited Ideas	302	(1)
The Use of Titles	302	(2)
Names and Trademarks	304	(14)
Copyrightability	305	(1)
Trademarks and Service Marks	305	(1)
Differentiating Between Copyrights and Trademarks	305	(2)
The Selection of a Name	307	(1)
Prior and Conflicting Company Names and Marks	308	(1)
Search Organizations and Services	308	(1)
Trademark and Name Infringement	309	(2)
Names of Artists	311	(1)
The Registration of Names	312	(1)
The Registration of Marks	312	(2)
The Advantages of Registration	314	(1)
Trademark Registration at Home and Abroad	315	(1)
The Ownership of Rights in an Artist's Name	315	(1)
A Record Company's Rights in a Name	316	(1)
Group Members' Rights in a Name	316	(1)
Doing Business Under an Assumed Name	317	(1)
Agents and Managers	318	(11)
The Roles of Agents and Managers	318	(2)
Exclusive Representation	320	(1)
The Management Contract	320	(3)
Abuses by Agents and Managers	323	(1)
Regulation of Agents and Managers	323	(1)
Trade Organizations for Personal Managers	324	(1)
Competition for Personal Managers	325	(2)
Relationships Between Artists and Personal Representatives	327	(1)
Notices and Payments	328	(1)
Taxation in the Music Business	329	(17)
Capital Gains	329	(2)
Estate and Gift Taxes	331	(1)
Depreciation and Amortization	332	(1)
Tax Treatment of Record Masters	333	(2)
Charitable Contributions	335	(1)
Deductions for Home Used as Office or Studio	335	(1)
Shifting Taxable Income to Persons in Lower Tax Brackets	336	(1)
Shifting Income from One Year to Other Years	337	(1)
Deferral of Income Through Retirement Plans	338	(3)
The Tax Implications of Type of Business Organization	341	(2)
Royalties as Income	343	(1)
Foreign Royalties Subject Only to U.S. Tax	343	(1)
Retention of Tax-Related Documents	343	(1)
Audit Procedures	344	(2)
Record Clubs and Premiums	346	(5)
Membership Plans	346	(1)
Outside-Label Agreements	347	(1)
Artist Royalties	348	(1)
Foreign Record Clubs	348	(1)
Mechanical License Fees	349	(1)
Premiums	349	(2)
Music Videos	351	(8)
Video Technology	352	(1)
Video Licensing	353	(1)
Audiovisual Rights	354	(2)
Production Costs and Their Recoupment	356	(1)
Musical Composition Licenses	357	(1)
Trade Paper Coverage of Music Videos	358	(1)
Demonstration Records in the Electronic Age	359	(7)
Production Methods	359	(2)
Doing It Yourself	361	(1)
Cost Factors	362	(1)
The Assumption of Demo Expenses	362	(1)
Subsidized Demos	363	(1)
The Submission of Demos	364	(1)
The Independent Demo	365	(1)
Payola	366	(6)
The Incentive to Engage in Payola	366	(1)
Commercial Bribery	367	(1)
Publishing Interests and Payola	367	(1)
Payola and Trade Papers	368	(1)
How Payola Works	368	(4)
Trade Practice Regulations	372	(5)
Discriminatory Price Differential Practices	372	(2)
Proportional Equality in Advertising, Promotional Allowances, or Facilities	374	(1)
Price Fixing, Tie-in Sales, and Other Deceptive Practices	374	(1)
Sound-Alike Recordings	375	(2)
Work Permits for Foreign Artists	377	(9)
Types of Work Visas	377	(1)
The Proper Petitioner and Petitions	378	(1)
Types of Petitions and Accompanying Documents	379	(2)
Where to File Petitions	381	(1)
Artist's or Group's Accompanying Personnel	382	(1)
Rejection and the Right of Appeal	382	(1)
Union Comity	383	(1)
Multiple Entries into the United States plus Extensions	384	(1)
Taxation	384	(2)
Sources of Information	386	(12)
Trade Press	386	(5)
Government Institutions	391	(3)
Music Organizations	394	(1)
Professional Research Services	395	(1)
Reference Materials	396	(1)
International Trade Shows and Associations	396	(2)
Technology and Music	398	(17)
The Market for Internet Music	399	(1)
Starting Your Own Music Web Site	400	(1)
Downloading Music and Video Files via the Internet	401	(2)
Streaming	403	(1)
The Record Companies and the Internet	404	(1)
Satellite Radio	405	(1)
Security on the Internet	406	(1)
Policing the Internet	406	(2)
Internet Effect on Performance Rights Organizations	408	(1)
Copyright Legislation	409	(2)
Sound Quality	411	(1)
Licensing Issues	411	(1)
The Future	412	(3)
Appendix	415	(98)
Appendix A: Selected Excerpts from the Copyright Act	415	(63)
Appendix B: Music Industry Organizations	478	(20)
Appendix C: Contract Checklists	498	(15)
Demo Shopping Agreement	499	(1)
Demo Subsidy Deal	500	(1)
Distribution Agreement	501	(2)
Exclusive Artist Agreement	503	(2)
Exclusive Songwriter Contract	505	(1)
Foreign Subpublishing Agreement	506	(1)
Home Video/DVD Song Reproduction	507	(1)
Live Concert Appearances	508	(1)
Master Use License for Film or TV Show	509	(1)
Mechanical Reproduction License	510	(1)
Personal Manager Agreement	511	(1)
Single-Song Contract	512	(1)
Index	513