Denver, Colorado Professor, University of Colorado at Denver Editor-In-Chief, "Entertainment Law & Finance"
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RECENT COURT DECISIONS* AND LEGISLATION PROFESSOR STAN SOOCHER, ESQ. – Denver, Colorado Professor, University of Colorado at Denver Editor-in-Chief, "Entertainment Law & Finance" State Bar of Texas 16TH ANNUAL ENTERTAINMENT LAW INSTITUTE October 20 - 21, 2006 Austin CHAPTER 2 *Case summaries included in this article based upon the author's coverage of these court rulings in Entertainment Law & Finance. AUTHOR BIOGRAPHY PROFESSOR STAN SOOCHER, ESQ. Music & Entertainment Industry Studies University of Colorado at Denver Campus Box 162, P.O. Box 173364 Denver, CO 80217-3364 Phone: 303-556-4066 E-mail: [email protected] Stan Soocher has served as Editor-in-Chief of Entertainment Law & Finance since its start in 1985. He is also Associate Professor of Music & Entertainment Industry Studies at the University of Colorado at Denver, where he has served as Department Chair. In addition, Stan is an entertainment attorney and author of the book “They Fought the Law: Rock Music Goes to Court,” which he is currently revising for an updated edition. Stan has won ASCAP Deems Taylor Awards for Excellence in Music Journalism, including for his music law articles in Rolling Stone and The National Law Journal. Recent Court Decisions and Legislation Chapter 2 TABLE OF CONTENTS I. CALIFORNIA TALENT AGENCIES ACT AND SEVERABILITY ............................................................ 1 II. RECORDING CONTRACTS AND PERSONAL JURISDICTION............................................................... 1 III. RECORD PRODUCTION CONTRACTS AND MEANING OF “COMMENCEMENT”............................ 1 IV. RECORDING CONTRACTS AND ARTIST BROADCASTS ...................................................................... 2 V. ROYALTY-COLLECTION AGREEMENTS AND ARTIST BANKRUPTCY ............................................ 3 VI. MECHANICAL LICENSES AND DOWNLOADING................................................................................... 3 VII. MUSIC ATTORNEYS AND RULE 11 SANCTIONS ................................................................................... 4 VIII. COPYRIGHT PREEMPTION AND RIGHT OF PUBLICITY ...................................................................... 4 IX. COPYRIGHT INFRINGEMENT AND FAIR-USE DEFENSE ..................................................................... 5 X. LIFE-STORY GENERAL RELEASE AND WAIVER OF CLAIMS ............................................................ 5 XI. RIGHT OF PUBLICITY AND “PREDOMINATE USE”............................................................................... 6 XII. CONTENT CREATION AND SEXUAL HARASSMENT............................................................................ 6 XIII. FILM-CONTENT DELETION AND COPYRIGHT INFRINGEMENT ....................................................... 6 XIV. FILM CONTENT AND MODIFICATION RIGHTS...................................................................................... 7 XV. FILM-PRODUCTION FINANCING AND BREACH OF CONTRACT ....................................................... 7 XVI. FILM-OPTION AGREEMENTS AND THEATRICAL RELEASE............................................................... 7 XVII. FILM DISTRIBUTION AND PROFIT RIGHTS............................................................................................ 8 XVIII. LEGISLATIVE CONCERNS.......................................................................................................................... 8 i Recent Court Decisions and Legislation Chapter 2 RECENT COURT DECISIONS AND the artist contract prior to end of the stated contract LEGISLATION term. The plaintiffs filed suit for fraud and breach of contract, among other things. The district court noted that the plaintiffs alleged that the label had “engaged in I. CALIFORNIA TALENT AGENCIES ACT the following business transactions within the State of AND SEVERABILITY Georgia: (1) directed Plaintiffs to record a demo with The Court of Appeal of California, Second their new lead singer …, (2) made a contract offer to Appellate District, Division One, reversed a grant of Plaintiffs, through [co-defendant] Driggers in summary judgment for actress Rosi Blasi that had Thomasville, Georgia, which Plaintiffs accepted … voided her agreement with her personal manager for and (3) paid [plaintiffs Patrick] Best and [Henry] violating the California Talent Agencies Act, Labor McGill for their work.” But the district court found no Code Sec. 1700 et seq. Marathon Entertainment Inc. v. personal jurisdiction over the label’s owners because Blasi, 140 Cal. App. 4th 1001 (Cal. App. 2d Dist. the plaintiffs’ allegations -- that the label owners had 2006) Blasi had sought to avoid paying management asked the band to record with a new lead singer and commissions to Marathon Entertainment from the TV that the band had worked with one of the owners in series “Strong Medicine.” She claimed that other Alabama who later informed the artists that the employment that Marathon procured for her without a contract had ended -- “do not constitute business talent license voided her entire Marathon-management transactions, a tortious act or omission, or tortious agreement. But Blasi had obtained the TV-series role injury caused within Georgia.” through her licensed talent agent, rather than Marathon. The court of appeal noted: “[U]nder the doctrine of III. RECORD PRODUCTION CONTRACTS severability of contracts, Marathon might be permitted AND MEANING OF “COMMENCEMENT” to recover the Strong Medicine commission because The U.S. District Court for the Southern District not only did the complaint allege that Marathon of New York upheld a jury determination in favor of a provided lawful personal manager services neither producer plaintiff as to the meaning of prohibited nor regulated by the Act, but Blasi produced “commencement of recording” in a production-release no evidence in the trial court linking the procurement agreement. T.E.A.M. Entertainment Inc. v. Douglas, 04 of her Strong Medicine employment contract to any Civ. 1552 (JSR) (S.D.N.Y. 2006). Artist Ashanti and illegal activity by Marathon.” her mother had asked Gerald Parker to help them find a The court of appeal distinguished Marathon major-label deal. Ashanti and Parker entered into two Entertainment from Waisbren v. Peppercorn production agreements. But after a year, Ashanti asked Productions Inc., 41 Cal. App. 4th 246 (1996), which to be released so that she could go after a deal with held that a manager’s incidental procurement of Noontime Music, one of Parker’s competitors. Parker employment for a client required the manager to meet signed an agreement releasing Ashanti that, in addition the requirements of the California Talent Agencies to a royalty-percentage right, stated: Act. In Marathon Entertainment, the court of appeal “You [Parker’s company T.E.A.M.] shall have the explained: “The parties believe that our decision in right to produce two (2) masters for my [Ashanti's] Waisbren completely precludes severance if the first album recorded pursuant to the Noontime personal manager commits even a single violation of Agreement [i.e. Ashanti's record agreement with the Act and contend that the [California Labor] Noontime]. You should be paid an all-in recording Commissioner has also adopted that view. … Although fund in the amount of $25,000 for each said two (2) Waisbren held that the personal manager's contract was masters ($10,000 of which, per master shall be deemed unenforceable as a matter of law because of the to be a recoupable producer' fee advance) exclusive of manager's illegal acts of procurement, Waisbren did mastering costs and fees or advances payable to not expressly discuss the doctrine of severability of Ashanti Douglas or us for recording. Said advance contracts.” shall be payable to you one half (1/2) upon the commencement of recording and the balance upon the II. RECORDING CONTRACTS AND PERSONAL delivery to and acceptance of the masters by Noontime JURISDICTION Music, Inc.” The U.S. District Court for the Middle District of Parker filed suit against Ashanti and her mother Georgia found that an Alabama-based record label was after he received no payments. The defendants claimed subject to personal jurisdiction in a suit in Georgia that the term “commencement of recording” was a brought by Georgia-based artists the label had signed. term of art that the drafting lawyer testified meant Best v. Raley Records and Entertainment Inc., 7:06-cv- “when you have songs, the songs are approved, you 23 (M.D.Ga. 2006). The plaintiffs obtained a deal, submit a budget, and then you begin the recording which included salaries, with Raley Records through process.” Parker testified, however: “I commenced third-party Brian Driggers. The label later terminated [recording] by ... continuing to embellish the 1 Recent Court Decisions and Legislation Chapter 2 recordings that we had with previously worked on, that Williams’ 1950s radio performances had the right to I thought -- not that I thought -- that I knew that I was exploit those recordings. Polygram Records Inc. v. told that this new company had taken some sort of a Legacy Entertainment LLC, 77 U.S.P.Q.2D (BNA) liking to, with the hope that maybe they would use 1680 (Tenn. Ct. App. 2006). Williams had been bound these, one of these songs, and I continued to commence to MGM Records under an exclusive deal from 1947 to by creating a new material that I felt would be suitable early 1953. In 1951 and 1952, Williams and his band, for the project. ... As far as the new ... recordings that I The Drifting Cowboys,