360 Deals

Under the traditional record deal model, the record label, for the most part, earned and recouped monies from album sales. Over the past decade, however, many labels have sought to take on a more active role in developing the artist as a brand name. As a result, labels have been willing to pay/advance more to the artist for touring, promotion, publishing, merchandise, etc., and in return the label earns a financial interest in other (sometimes all) facets of the artist’s career. Some noteworthy 360 deals in recent years include EMI’s deal with Robbie Williams in which EMI paid Williams $160 million for an interest in his entire career, and the Jay-Z and Madonna deals with Live Nation, both of which paid out at over $120 million.

US copyright law affords any artist and/or band the right to record their own version (cover)  of a previously recorded /published musical piece even if the original owner objects. Such use is known as a compulsory license. Specifically and pursuant to the Act: “A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work …”

For example, your brother’s garage band may record and sell a cd covering a Waylon Jennings song, provided that, in the absence of permission from the song’s publisher, your brother complies with the Copyright Office’s instructions for obtaining a compulsory license, and that the cover recording does not change the basic melody or fundamental character of the original work.

Nashville Intellectual Property Lawyer

The Lifespan of Intellectual Property Rights

A common source of confusion among the public is the lifespan or duration of intellectual property rights.  While the laws have been amended periodically, as of today, a federal trademark can potentially last forever. I say potentially because in order for a trademark owner to retain his/her perpetual rights he/she must file the necessary renewal affidavits with the USPTO, one between years 5-6 and the other between years 9-10, affirming that the mark is still being used in commerce. An owner must also take adequate measures to maintain their mark and protect their mark from infringement.

A copyright, on the other hand, has a fixed term. Generally speaking, for works created after January 1, 1978, copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, copyright protection endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. Depending on several factors the lifespan of a copyright for works first published prior to 1978 will vary.

Lastly, a  utility patent, provided that all maintenance fees have been paid,  filed on or after June 8, 1995, will have a lifespan of 20 years from the filing date of the earliest U.S. application. Applications that were pending on and for patents that were still in force on June 8, 1995, the lifespan is the longer of 17 years from the date of issuance or 20 years from the filing date of the earliest U.S. application. A design patent, unlike a utility patent, has term of 14 years from the date of issuance.

Nashville Entertainment Attorney

The “straight” publishing agreement is a contractual agreement whereby a publisher engages the songwriting services of a songwriter. Typically, a music publisher will pay a songwriter a monthly (or sometimes an annual) advance, and in exchance for that advance the songwriter will be required to write a certain number of songs for the publisher. In a “straight” publishing agreement, as oppossed to what is known as a “co-publishing” agreement, the publisher retains all rights to the songs written by the writer during the term of the agreement. The publisher is then responsible for seeking commercial exploitation of the songs. Such exploitation is commonly derived from mechancial licensing (having an artist record the song on his or her album) and synchronization licensing (licensing the song for use in film, television, and video games). When royalties from commercial exploitation are paid to the publisher it is the industry standard for the publisher to pay the songwriter a 50% share.

Be advised that while the foregoing illustrates what many consider standard terms for a “straight” publishing agreement, there are many  nuances involved in the drafting and negotiation of publishing agreements.

Here is a brief answer that might clear up some confusions-

A Living Will

• Only takes effect when all medical procedures have been performed by physicians and you are only kept alive by life support.  Simply, if the machines are turned off, you will pass away.
• By having a Living Will, you take the decision out of your family or friends’ hands by making your decision in a legal document.
• The classic example is the Terry Schiavo case.  Her parents believed her wishes were to be kept alive while her husband believed her wishes were to not be kept alive artificially.  Since she had no Living Will, a long strenuous court battle ensued over several years.  There are no winners in that situation.

Medical Power of Attorney

• A Medical Power of Attorney gives you the authority to designate someone to make decisions on your behalf if you ever become incapacitated and are unable to make decisions on your own.
• If you ever become incapacitated, the person you have designated will be able to choose which medical procedures to perform, if there is a decision to be made regarding medical care.
• The person you designate will only be able to make these decisions while a doctor has deemed you to be in an incapacitated state.   That is, they have no power to make decisions unless a doctor has determined you are unable to make those decisions.

This is a brief summary of the differences between a Living Will and a Medical Power of Attorney.  If you would like more information about this topic, you may contact us to discuss your situation.

The Estate Division of the Gordon Law Group

Michael McNulty, Estate Attorney for the Gordon Law Group

Anyone who needs debt relief and considers bankruptcy as a proactive step towards attaining such relief should understand that even more important than the “to do” list is the “not to do” list.

• Not-To-Do Number 1:            Do Not Give Anything Away   
  • A bankruptcy trustee could see you giving property away as a gift, even to family, as a fraudulent conveyance.  The bankruptcy code allows the trustee to recover any property that you gave away or gifted within one year prior to filing bankruptcy.
• Not-To-Do Number 2:            Do Not Repay Debt
  • A bankruptcy trustee could see you repaying a debt as preferential payment, and recover the value of the property from you so that it may be divided among your creditors.

 Transferring any property, cars, cash, or otherwise, may void an exemption or be considered preferential payment.  Before filing bankruptcy you must prepare to file, and before preparing you must know what to do and especially, what not to do.  To protect yourself, your assets, and your family, you should check with competent legal counsel before transferring property or making large payments when considering bankruptcy.

Nashville Bankruptcy Attorney

The standard by which trademark infringement is proven is “likelihood of confusion.” More specifically, a likelihood of confusion is present if potential consumers will likely be confused or mistaken about the origin of a product or service or as to the sponsorship or approval of such. To analyze whether a particular situation has developed the requisite “likelihood of confusion,” courts have generally looked at the following factors:

1. The similarity in the overall impression created by the two marks;

2. The similarities of the goods and services involved;

3. The strength of the plaintiff’s mark;

4. Any evidence of actual confusion by consumers;

5. The intent of the defendant in adopting its mark;

6. The physical proximity of the goods in the retail marketplace;

7. The degree of care likely to be exercised by the consumer; and

8. The likelihood of expansion of the product lines.

When choosing which you would like drafted, there are various factors to consider.

• A Will costs less to draft but a Living Trust will save your Estate money when you pass away.
• A Living Trust is not subject to probate proceedings like a Will but there is no automatic court supervision to deal with disputes.
• A Will is public record the moment it is opened for probate while a Living Trust remains private.
• With a Living Trust, you are required to title all of your accounts in the name of the trust.  You are not required to retitle any of your assets if you have a Will drafted.

These are just a few of the factors to consider when deciding if you need a Living Trust or a Will.

If you would like more information, you can contact our office for a consultation.

More Information about the Estate Division of our firm

Pursuant to the United States Copyright Act, statutory damages are awarded for infringed works previously registered with the US Copyright Office prior to infringement or for infringed works registered within 90 days of publication. Statutory damages typically range from $750 to $30,000 as the court considers just. Damages for willful infringement, however,  can be as much as $150,000 per infringement.

Noah McPike

Nashville Law Firm