By: Melissa P. Bernier, Esq.
As a musician, actor/actress or anyone working in the entertainment industry, it can be very challenging to have to perform your craft and stay abreast of laws that govern your industry. There is so much information out there - from the Internet and/or word of mouth - much of which is either confusing, conflicting or doesn’t give a clear answer to the many questions that arise.
In an effort to make things easier for you, I’ve compiled a quick and dirty list of what I believe are the most important things that you need to know. This list is centered on copyright issues, as that is the legal issue that comes up the most (case in point, you want to know what’s going on so you can avoid a Robin Thicke “Blurred Lines” situation…you can thank me later!)
- A “poor man’s copyright” does not give you valid copyright protection.
If you don’t know what a “poor man’s copyright” is, then you are already off to a great start. A “poor man’s copyright” is when you mail (like, via the post office) a copy of your music or other creative work to yourself under the illusion that by having done so; you now have a valid copyright. WRONG!
#1) This method isn’t recognized by law; #2) Your music and other creative works obtain copyrights once your work is fixed in a tangible form - so, sending it to yourself is redundant, useless and a waste of postage; and #3) By not registering your work with the U.S. Copyright office timely (timely = after 3 months of publication), you won’t get all the great benefits that come along with it which include: reproducing the work, distributing the work and MOST IMPORTANTLY, being able to bring a copyright infringement lawsuit against anyone who copies your work for $750 - $150,000 + attorneys fees for each act of infringement.
Registering the work costs next to nothing but allows you to gain so much. Like Nike says, “Just Do It!”
- There is no “50 second,” “5 second,” “8 bar,” or “1 bar” rule when it comes to sampling music without the owner’s permission.
Sampling anyone’s music without their permission, whether it be a portion as little as 5 seconds or 1 bar, can lead to copyright infringement, period. If the owner of the song that you sampled timely (see #1 above) registered the work, they can and should most definitely sue you.
I’ve seen this come up in situations where musicians sample beats. In one instance, I know of an artist who sampled a SUPER FAMOUS beat from a SUPER FAMOUS artist who created a SUPER FAMOUS song. The sampling artist used maybe 5 second of the beat. But those 5 seconds were so recognizable that EVERYONE knew who the original owner of the song was. Although no copyright infringement case was filed, if it were (or will since it could happen in the future) the sampling artist could be wiped out…financially and professionally.
As I mentioned earlier, take a lesson from Robin Thicke. His sampling of Marvin Gaye’s “Got to Give it Up” in “Blurred Lines” cost him and his collaborators $5.4 million dollars in fines, not to mention legal fees. Can you afford that if that were to happen to you?
Point blank, don’t sample without securing the rights from the owner. You can’t afford not to.
- You need to secure a person’s life rights before you write about them or create a film about them.
This one is for all the authors and filmmakers out there. Everyone has inherent rights to their life story. Therefore, if someone wants to create a story or film about your life, they need your permission first - this is known as obtaining life rights. Without obtaining an individual’s life rights, as an author or filmmaker you expose yourself to lawsuits based on defamation, invasion of privacy and/or right to publicity (depending on your state).
Within this particular subject matter there is the distinction between private and public figures. Generally speaking, public officials and figures have opened more of their lives to the public and therefore more of their lives can be portrayed without invading their privacy. However, you may still want to get their life rights for your story because they have the resources (aka the money) to ruin your career.
Obtaining life rights also applies in situations where your story is “based on a true story” or is even a fictionalized version of a true story. The rule here is that you want to be safe rather than sorry…get that person’s life rights and avoid a costly situation.
- Mixtapes containing uncleared samples are still subject to copyright infringement even if you don’t sell them.
As I mentioned in #1 above, registering your work with the U.S. Copyright office gives you certain benefits. These benefits are called a bundle of rights. These rights include: 1) the exclusive right to reproduce your work; 2) the exclusive right to distribute your work; 3) the exclusive right to perform your work; 4) the exclusive right to display your work; 5) the exclusive right to make derivatives of your work; and 6) the exclusive right to digitally transmit your work.
Notice the word “exclusive” repeated 6 times?!
Most people think that if someone uses your work and doesn’t make any money off it, then it’s fine. WRONG! The owner of the work has every right to prevent you from using their work, even if you don’t make a penny off it, because they have the right to be the person who has the benefit of using that work EXCLUSIVELY.
Kinda sucks but think about it this way…would you want your work floating around all over the place, available to everyone and anyone who could just use it, distort it and/or take credit for it? If your answer to that is “no” then you might want to think twice before doing that to someone else.
- In order to use a song in a motion picture, television show or music video, you need to obtain a synchronization license.
A synchronization license is a license, given to someone by the valid copyright owner that grants the right to synchronize the musical composition in timed relation with audio-visual images on film or videotape. In other words, a synchronization (or synch license, for short) allows you to use copyrighted music in a film, television show or music video. Failing to obtain this license from the copyright owner subjects you to a copyright infringement lawsuit.
The overall lesson here: you have to ask permission to use what doesn’t belong to you.
Melissa P. Bernier, Esq. is the principal and managing attorney of Bernier Legal, LLC a boutique New York City entertainment, fashion and small business law firm. Ms. Bernier writes for several publications including The Haitian Times, Brooklyn Legal Blog and Womeneur. For more information, check out her websites: www.bernierlegal.com and www.brooklynlegal.nyc. For inquiries or further questions please email her at firstname.lastname@example.org
Legal Disclaimer: This article is intended for general information purposes only. This article neither constitutes nor replaces legal advice of any kind, nor does it create an attorney-client relationship. You are advised to directly seek the help of a licensed attorney in your state to help you with your unique and specific situation.