E+Slawyer_24.2_sum06 9/29/06 8:55 AM Page 1 How to Tell If a Work Is Adventures Issue Spotting Swords Into 5 in the Public Domain 8 in Torino 20 Your Photograph 23 Plowshares A PUBLICATION OF THE ABA FORUM ON THE ENTERTAINMENT AND SPORTS INDUSTRIES VOLUME 24, NUMBER 2 SUMMER 2006 Pick Me! Pick Me! Touchdown! The New Copyright Lottery Cleveland Browns By Edwin F. McPherson Fans Earn Right to represent artists in the music industry, the vast majority of whom write Use “Dawg Pound” their own music (and some for others). It is for this reason that I am partic- I ularly sensitive about artists’ and songwriters’ rights. It is also for this rea- son that I am particularly sensitive about artists stealing other artists’ music. If By Joseph Hanna someone writes a song, he or she should and does own all right, title and inter- est in and to that song from the moment of creation, including all of the “bun- dle of rights” enjoyed by all copyright holders. The bundle of rights include: ictims of misery—from the the right to reproduce the music, the right to prepare derivative works based last second heroics of John upon the music, the right to distribute copies, the right to perform the music, VElway and the Denver Broncos the right to display the music publicly and, finally, the right to perform the in “The Drive,” to their franchise music by means of a digital audio transmission.1 bolting east to Baltimore in 1995—the Cleveland Browns’ faithful have reason Sampling is everywhere to cheer again after a recent ruling ren- With the advent of “sampling” in the last decade, the number of copyright dered by the United States District suits that are filed every year has increased exponentially. Technically, a sample Court for the Southern District of New is “any digitally recorded representation of sound”2 or “a digital snippit of York, which granted the National Continued on page 14 Football League Properties, Inc. (NFLP) and the Browns the rights to the phrase “Dawg Pound.” Caveat Scriptor In the early 1980s, Cleveland’s three- time Pro Bowl defensive back Hanford Don’t Get Burned by Boilerplate Releases Dixon would bark like a dog to pump up his defensive teammates. The fans in By Peter L. Skolnik and Matthew Savare Cleveland Municipal Stadium’s bleach- er section joined Dixon and, before too The Catch 22 for unpublished writers long, the 10,000-seat bleacher section riters often spend years crafting and perfecting their novels, screen- became known as the “Dawg Pound.” plays, teleplays and stage plays. When their masterpieces are com- The die-hard Browns fans that made up Wplete, they exult in a sense of euphoria, eager to shop their property the “Dawg Pound” began wearing dog to agents, studios and production companies. However, writers—particularly noses, dog masks and bone-shaped first-time writers—generally find it difficult to attract significant attention to hats. The Dawg Pound quickly devel- their work. In the unlikely event an unpublished writer does find someone in oped a reputation around the league for the industry to read his or her material, the writer is oftentimes faced with a their antics, including throwing dog Hobsian choice: to either sign a nonnegotiable release that is so favorable to bones and barking at the opposing team the other party that it makes it extremely risky and costly for the writer to throughout the game. sue for copyright infringement or to decline to submit the property and pass The NFLP soon took notice of the vast- on perhaps the only opportunity the writer may have to sell the work. ly increased sale of the Brown’s merchan- Continued on page 36 Continued on page 34 E+Slawyer_24.2_sum06 9/29/06 8:55 AM Page 14 Pick Me! Pick Me! The New Copyright Lottery and/or a percentage of the new composition, thus tak- Continued from page 1 ing money directly from the new songwriter (including any cowriters, whether or not they had any knowledge of the sample). sound.”3 Sampling is defined as “the process of encoding The sampled record label (or whoever else owns the an analog signal in digital form by reading (sampling) its copyright to the sound recording) also generally gets an level at precisely spaced intervals of time.”4 A sample, upfront fee, but may very well negotiate a percentage of the therefore, can include pieces of recorded music and other retail price of each album sold. All of this money gets sounds that are taken from others’ recordings and pieces charged to the artist, who may or may not have had any that are not. Pieces that are taken from others’ recordings knowledge about the sample in the first place. are potentially infringing. Those that are not are simply dig- In some instances, these charges to the artist can substan- ital sound bites from nature or machinery and are often tially reduce the royalties that he or she earns from his from the artist’s own recordings. album. However, if the artist is unrecouped6 with his record Fortunately, most of the artists that I represent do not label (as most artists are) such charges will put the artist engage in sampling other artists’ music. In fact, at least even further in debt with the label. Being further in debt one of my contemporary artists, Linkin Park, is so consci- further reduces his options and bargaining power (which entious about using others’ material that it not only refus- was not significant to begin with). es to use any samples of anyone else’s music, it actually Such permission is routinely given by both the sampled insists on recording its own vinyl records to use for songwriter (or publisher) and the sampled label for various “scratching,” so that literally everything the band records fees and fee structures. In fact, the practice of using samples or plays is original. However, some of my artists, like and obtaining clearances is so pervasive in the music indus- most contemporary artists, use samples. Such use has try today that there are a number of companies whose sole almost bankrupted many artists. function is to negotiate sample licenses. Some people in and out of the music industry do not In the early days of sample clearance, most samples understand the use of sampling. In some instances, sam- were licensed for a one time, up front, buyout fee of $500 pling may make sense, particularly when the sample is of to $1000. Today, sample licenses from the publisher are popular music. For instance, when M.C. Hammer sam- generally sold on a percentage basis. Typically, publishers pled Rick James’s “Super Freak” with his own “U Can’t receive an ownership interest in the new song, which Touch This,” the “Super Freak” sample was so pervasive interest generally runs from 15 percent to 50 percent. In and recognizable in Hammer’s song that many people very rare occasions, the percentage is higher. On the purchased the song, and presumably the entire album, sound recording side, there are advances paid ranging because of their familiarity with the sampled song. When from $2,000 to $15,000 (typically $5,000 to $10,000), with a Run D.M.C. sampled Aerosmith’s “Walk This Way,” it royalty “penny rate” of $.02 to $.07 per unit sold. What is gave Run D.M.C. instant credibility (and revitalized paid depends on the length of the sample (as used in the Aerosmith’s career). new song) and the importance of the sample to the However, today’s producers often use samples from licensee’s song. music that is completely unrecognizable to most people. Unfortunately, if for some reason clearance is not In fact, some of the samples are not considered music by obtained, the sample is often already inextricably inter- many; they are just sounds or “beats.” Many of today’s twined with the rest of the music that it would be impossi- producers do not play instruments and are constantly ble to remove the sample and keep the song. When this looking for new “beats,” which they either make up on happens, labels, artists and producers find themselves in a their own or take from other recordings as a sample. very difficult position, potentially having to remove the Unfortunately, most producers who use these “beats” entire song from the album, even if the song was ear- generally take them from other artists’ music. marked as a potential hit. Traditionally, although counter-intuitively, producers will place one or more samples in a recording, with or Samples and the Copyright Act without telling the artist, and expect the record label to When a sample from another’s work is used without obtain “clearance”5 on the samples, essentially after the obtaining a license, the use of the sample generally consti- fact. Because the producer is, in theory, participating in tutes copyright infringement.7 In fact, in general, the the writing of the song, he or she expects to (and usual- unpermitted use of a sample infringes both the copyright ly does) receive songwriting credit and publishing roy- of the songwriter (or the publisher) and the copyright of alties in addition to his or her separately negotiated the owner of the sound recording, as is obvious by the producer royalties. parties from whom permission must be granted for the use of a sample. Sample clearance Once in a while, of course, a sample clearance “slips Generally, the clearance or permission for the sample through the cracks,” meaning that either the producer must be obtained from both the copyright holder of the does not tell the label that the recording contains a composition (usually the publisher) and the copyright sample or the sample clearance house is unable to get holder of the sound recording (usually the record label).