Avoid Getting Burned: Choosing the Right Cons to Grow Your Business

With Guest Contributor: Stephanie Cole, Social Media Expert

Image by Tunechick83 cropped to fit

“Universal FanCon,” slated for April 27th-29th in Baltimore, was postponed (though many believe it’s essentially cancelled) with less than a week’s notice to attendees, vendors, and artists. Even volunteers involved with the planning of the event were blindsided. And this is not the first time something like this has happened. Last minute Con postponements, cancellations, or severely poor planning aren’t just frustrating for excited attendees; they can be financially devastating for vendors, especially those from out-of-town.

Vendors at conventions – artists, performers, writers, game developers, costume designers – are mostly small, independent, and focused on creative work. They rely on these events to grow their business, sell their merchandise or art, and cultivate repeat customers or clients for the future. And whether they have a table at Artist’s Alley, appear on a panel, or do professional photo shoots with cosplayers, they all invest a great deal of time and effort traveling across the country to attend these things.

And even if the organizers are being honest and Universal FanCon really is only postponed, vendors who had non-refundable expenses almost certainly won’t be able to return on an unspecified future date; in short, it’s unlikely that they will be able to get even a sliver of reimbursement for the money they invested in working the Con. And for businesses as small as these, those losses can put their business in danger of failing entirely.

Choosing a Convention to Attend

Conventions can be great ways for artists and other creators to market their work and grow their business, but it comes at a cost, so you need to be careful when deciding what Cons you should invest in attending. So here are some factors to consider:

Is the Con well-established

Well-established Cons are those that have happened multiple years in a row and have a track record of running smoothly (well, as smoothly as any huge event can run). To be clear, a well-established Con does not need to be large, it just has to have a track record of being well run and reliable. Another benefit to more established Cons is that you have the added benefit of knowing what the attendance numbers will look like. You don’t want to spend money to attend a Con only to find out that you won’t have enough potential customers to make it worth your time.

Working at a new Con is not necessarily impossible, but you need to do a great deal more due diligence then you might otherwise. The first questions you need to ask are who is organizing this event and do they have experience running events of this magnitude in the past. If the organizers are complete amateurs, that is a serious red flag. But there are other factors you should consider as well.   

Is the Con transparent with news and updates

Check on a Con’s social media for panel and guest confirmation, location details, and other regular updates. As they progress in their planning, a proper event will utilize their social channels to be as transparent as possible. They should be excited about their new event, so they’ll want to share whatever they can – that’s what social’s for, after all: To get people excited. And a lack of excitement will almost always translate into slow ticket sales, which in turn can cause sponsors to pull out - a death knell for any large public event.

Another thing to watch for in any news or updates you receive from the Con is whether they seem reasonable in their goals. Con organizers, especially first time organizers can sometimes be so excited about their new Con that their dreams end up far outstripping their actual means . Organizers of failed Cons are not (always) malicious, sometimes they’re just in over their head. So as you see plans forming and find yourself wondering how are they going to pull this off, seriously consider the possibility that they won’t. Trust your gut, especially if something seems off about the planning.  

Require your contract have a full refund policy

If you decide to work any Con, but especially a new one, you absolutely need to have written terms and conditions from the Con that fully explain a few key points:

1. How much you’ll be paying to participate.

2. What benefits or services the Con will be providing to vendors.

3. What rights the Con will have to any pictures of your work that are taken during the Con

4. Whether the Con can or will use you or your business in promotional materials (which can be a very good thing if managed correctly).

5. What happens if you need to cancel for any reason, and finally, and most importantly.

6. What happens if the Con gets canceled or postponed such that you can no longer attend through no fault of your own.

If the terms of the agreement are not clear or if there is no agreement at all, that is a very bad sign. And yes, you need to read the entire agreement; clauses that excuse the Con from refunding money in the case of cancellation or postponement may be buried deep in the “boring” legalese, but you need to make sure to find it.

Do a little sleuthing if it’s a new Con

Before ordering tickets, or securing a booth, it doesn’t hurt to do a small bit of digging. Contact the con and see how quickly they respond, and check on what they have confirmed so far. Also, contact the convention center or hotel that’s hosting the Con, and determine the stability of the contract. They can’t give you confidential information, but since the Con is brand new, by telling the location you just want to verify before securing a booth at a new event, the details they can provide, they probably will.

In addition, as the planning of the Con progresses, keep a close eye on the policies and procedures that are (or are not) being put in place. Do they have appropriate crowd control and security arranged? Do they know how the lines will work? Do they have accommodations for disabled guests? All of these are signs that a Con is being well planned. If you reach out to the organizer they should be able to at least tentatively answer these questions. If they brush them off as unimportant, you should probably brush their Con off as unimportant as well.
 

It's Elementary, my Dear Watson: The Art and Use of Derivative Works in Copyright Law

If you are an artist or a writer or if you’re simply interested in copyright law, you’ve probably heard the phrase “Derivative Work”. This is a term that gets bandied about quite a bit, but for most its meaning and legal significance are a little fuzzy. But, determining if something is a derivative work is one of the first questions of law and fact that must be made before any copyright infringement claim can be made.  So, this blog post is about derivative works: what they are, what they aren’t, and what their significance is in copyright law.

What is a Derivative Work?

The concept of a Derivative Work is defined in the Definitions section of the Copyright Act (17 U.S.C. §101) as “a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

In plain English, what that means is that a derivative work is also protected under the Copyright Act because it meets two requirements: (a) it is “fixed in a tangible medium” (i.e. not just an idea in the creator’s head), and (b) it is an “independent work”. An independent work is a work where the creator made some independent effort (or “toiled” over the work as described by the courts) and has also brought some form of independent creativity (or a “modicum of creative spark,” also according to the courts)  to the the creation of the work.

An example of a derivative work created by Photo by Jon Tyson on Unsplash

Thus, simply because a work is derivative does not mean it loses copyright protection, as long as it meets the above two requirements (which are interpreted quite liberally in American copyright law). But, even though a derivative work may be subject to copyright protection, the creator is still limited in how it can use the derivative work without improperly infringing on the prior work’s copyright.

Many judges and attorneys think that they will “know” a derivative work when they see it; much like the informal “you know it when you see it” standard first originated in 1964 when the Chief Justice of the Supreme Court Potter Stewart wrote in a “concurring opinion” on an obscenity case Jacobellis v. Ohio. Potter took the position that, in general, pornography should be speech protected under the First Amendment unless it was “hard-core pornography.” And his definition (such as it was) of what hardcore pornography consists of resulted in an oft-quoted phrase:

“I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

So basically, Justice Stewart punted the question and just two years later the Jacobellis decision was modified in Memoirs v. Massachusetts to establish clearer guidelines and three factors to define what is or isn’t pornography (the details of which are a discussion for another day). But despite the fact that the “I know it when I see it” rule was essentially made obsolete quite quickly, it continues to be referenced by attorneys and lawyers in many fields, including copyright.

But whether or not something is a derivative work can be a complicated question and we can’t always tell just by looking at them. Take for example the current dispute between NBA player Lebron James and Alabama football coach Nick Saban. James is objecting to a web series started by Saban called “Shop Talk” because James believes it was intentionally modeled on his own web series, “The Shop” and is, therefore, an infringing derivative work. Both web series involve Saban or James having casual discussions while in a barbershop. “The Shop” began airing about a year ago while “Shop Talk” only started quite recently. James claims the shows are similar enough that Saban must be emulating his series while Saban claims that he had never heard of “The Shop” before James’ complaint about his show.

As you can probably guess, matters like this can become complicated both factually and legally because at some point (if no settlement is reached first) a judge or jury must not only determine if Saban’s series is actually similar enough to “The Shop” to be considered derivative but also whether there is evidence that Saban actually did come up with the idea entirely independently of James’ show. These sorts of disputes can potentially linger for years (and cost a great deal more in legal fees than most copyright owners can afford) and it doesn’t even answer the more important second part of the legal analysis: whether a derivative work improperly infringes upon the original work or if it’s protected by one or more exceptions to the Copyright Act.

Does a Derivative Work Always Infringe the Original

Though by their nature derivative works do infringe upon the works that inspired them, it does not necessarily follow that all uses of derivative works are actionable infringement under the Copyright Act. There are several exceptions within the law itself that exempt at least some uses from infringement. Here are a few of the most common exceptions:

• The original work’s copyright has expired. Copyrights do not provide permanent protections for the author; for example, in the United States copyrights expire after either the life of the author plus an additional 70 years or set terms of 95 or 120 years (depending on what type of work it was, when it was published, and whether the author was known). It’s  the reason that, say, remakes of Shakespeare’s works are so common. And yet, it is not always that simple, as is the case with Sherlock Holmes: even though the copyright for Sherlock Holmes expired in the UK and Europe in 2000 (75 years after the death of Sir Arthur Conan Doyle), due to a quirk in American copyright law (inexplicably named the ‘Sonny Bono Copyright Term Extension Act’) the copyrights for works made after 1922 were extended by twenty years, thus many creators here in the United States are still paying a licensing fees to the Doyle estate.

• The creator of the derivative work has a license. As briefly mentioned above, creators of derivative works who wish to make full commercial use of their work can so long as the owner of the original material grants them a license. A written license agreement, if you can afford one, is perhaps the best ways to protect against future infringement claims. But as with any agreement like this, it is crucial that there is a written contract signed by both parties that lays out the precise terms of the license itself. Because of potential pitfalls, having an attorney create or review any license agreement is a good choice, whether you are the one getting or the one granting the license.

• The derivative work falls under an exception to the Copyright Act: The exceptions to copyright included in the Copyright Act and interpreted by the courts are the most common defenses in any case involving copyright infringement, but those exceptions are not nearly as broad as many think. Exceptions to the Copyright Act in the United States fall under the umbrella term “fair use”; a phrase used by many but understood by few. I have already written about one example of fair use, the parody exception, and will be blogging about more in the future, so be sure to check those out.

Are derivative works entitled to copyright protection?

The short answer? Yes.

Perhaps the most common misconception about copyright law and derivative works is that derivative works are not entitled to copyright protection in their own right. This isn’t true. If you steal or use a derivative work without a license or an affirmative defense like fair use, you are committing copyright infringement. This includes all kinds of uses of other creator’s work; from publishing or reposting a creator’s work (including fan art and fanfiction) on social media, blogs, or content hosting sites (like Goodreads or Deviantart) without permission from the creator. Or creating accounts on websites (like Etsy, Redbubble, or Zazzle) to see merchandise featuring a derivative work without a license explicitly giving permission for these uses, especially any revenue-generating uses.

In addition, it's also important to note that giving credit to the creator can help in showing “fair use” but it is not enough in and of itself to negate copyright infringement. Especially if the infringement is particularly egregious, as I discussed here. In addition, no matter what many internet users believe, a work does not lose copyright protections simply because the creator posts the derivative work on the internet. If you take anything away from this post, I hope it is this:

If you like an artist or creator’s work online, ask them for permission before you use it, when necessary, pay for a license to do so, and give credit where credit is due. Anything else is just plain stealing.  

Guiding Hands: A Look at the Women Who've Inspired Me on My Road to Practice Law

I will begin by saying, I have always been lucky. I was raised in a community and a family where the law was not considered a man’s profession. But when my father chose to attend Northeastern University School of Law (class of ‘76), part of his decision was because Northeastern (NUSL) already, even then, had near gender equity in his law school class, a remarkable thing at the time.

That legacy of empowering and honoring women and NUSL’s commitment to public interest law and social justice were two of the main reasons I chose to enroll there 31 years after my father graduated. So, to celebrate International Women’s Day, I wanted to take a moment to recognize three of the female professors at NUSL – women who are remarkable in their own right and have challenged, nurtured, and trained amazing lawyers. They each continue to inspire me both in my practice of the law but also in life.

Lucy Williams

Professor of Law and Faculty Director of the Center for Public Interest Advocacy and Collaboration

Professor Lucy Williams graduated from the University of Chicago in 1974 and has followed her passion for the role that law and the justice system can play in fighting poverty, violations of civil and human rights, and the institutional structures within our society and government that perpetuate them. From ‘79 to ‘91, Professor Williams worked for the Massachusetts Law Reform Institute, and used the power of federal civil litigation to make social change. Since she joined NUSL in 1992, she’s been teaching students to do the same. A simple glance at her CV shows a career of excellence. Just on March 1st of this year, Professor Williams was awarded a Fulbright Specialist Award to “[work] in partnership with Wuhan University School of Law in China, [to] develop a Public Interest Law Clinic Program to address the existing gap between legal education and current needs in China.”

And while she’s remembered for many things, I and many other NUSL alumni remember her as the Professor who teaches the most rigorous, difficult, and rewarding course they took at Northeastern. Professor William’s Federal Courts class was legend - a legend it lived up to - and in 2017, when lawyers were sitting on the floor of Logan Airport and airports across the country, preparing to provide emergency pro bono legal services to detained immigrants under the “Muslim Ban,” I felt certain that some of those were her students. When you walked into her class, you thought you understood the law, but it wasn’t until you walked out did you realize that now, maybe, you truly did.

Rashmi

Dyal-Chand

Professor of Law and Research Director

An NUSL alumna herself (class of ‘94), Professor Rashmi Dyal-Chand was one of my personal mentors while at NUSL, as she was for many others. Her work focuses on the importance of properly and fairly structured institutions and their role in social equality, with a focus on property law. She was also one of the driving forces behind the launch of the Community Business Clinic, which focuses on matching student lawyers with underserved communities and clients who need representation in business law matters, but cannot afford an attorney (an interest you may recognize that I share). To quote from NUSL’s website:

This clinic is funded by a $500,000 grant from the US Department of Commerce, with the goal of developing a university center providing free legal services to low-income and other underserved entrepreneurs in the region. The grant is part of a competitive, national program designed to enhance regional economic development tools that will expand opportunity and create jobs. Related research conducted by Professor Dyal-Chand and Professor Jim Rowan, senior advisor, will be used to develop a national model of clinical legal assistance in support of sustainable business creation and technology commercialization among underserved entrepreneurs.

I was lucky enough to take my first-year Property Course with Professor Dyal-Chand. And in addition to learning what a defeasible fee is - I learned about the importance that clear and fair legal processes governing property (and business) can play in raising up those who would otherwise have no access to the property or wealth of this country, or any other. I didn’t know it then, but the lessons I learned in her classes, in her office hours, and in our casual conversations would be a big part of why I would eventually choose to found this firm.    

Susan Barbieri

Montgomery

Executive Professor of Law and Business

Another NUSL alumna (class of ‘86), Professor Susan Montgomery actually joined the faculty at Northeastern in 2008, one year after I enrolled. A joint faculty member of the law school and the D’Amore-McKim School of Business, Professor Montgomery has brought a strong transactional law (types of law that are not in court) program to Northeastern, really for the first time. She came back to Northeastern after an extremely successful career in the private sector, which included being named a partner at Foley Hoag LLP, one of the most well-respected law firms in Boston, in 1995, a position in which women remain woefully underrepresented to this day. Professor Montgomery’s classes taught me how to draft and review contracts, the legal aspects of product development and business development, and to think about how businesses operate and the role lawyers can play to help them operate better (and more safely).

And on a personal note, the first person I spoke to after I decided to think about opening my own firm was Professor Montgomery. She pointed me towards Professor Jim Rowan (mentioned above) and the Lawyers for Affordable Justice project. Without her, I literally wouldn’t be here.

These are just a small sampling of the women who have lead me into law and I can only hope that someday I can help another generation of female attorneys nearly as much as they helped me.

Client Spotlight: 131 Consulting - The Growth of a Social Agency

131 Consulting, a social media strategy firm, became a client of ours at the beginning of 2017 when its founder, Stephanie Cole, decided to relaunch as a full-time consulting business, as opposed to performing part-time freelance work. In short, she was going all in. My job was to make sure that when she jumped in with both feet that we had checked below the surface for any rocks – in other words, to help prepare a legal framework and contracts that would best manage any legal risks so that Stephanie only had to worry about running her business.

And that focus has definitely paid off: In its first year as a corporate entity, 131 Consulting has helped a wide-variety of businesses develop their social campaign, including two app launches, a multi-brand integration platform for several medical practices, an exponential growth strategy for a brand with a global presence, and a baseline launch for several new businesses.

As we begin 2018, one of those businesses is actually mine. I’ll admit, when Stephanie and I first began working together on my social media presence, I was a bit hesitant. But not only has she helped me think more strategically about my brand and begin generating more focused social media content, but she is also teaching me how the underlying campaigns work and how to evaluate the return on investment for every post on every social media platform. In short, Stephanie and 131 Consulting makes sure that you will be prepared to continue running an effective media campaign even after she is no longer actively consulting with you. Having worked with her over the last couple of months, I can see why 131 Consulting has had such a successful first year in business.

All of this has led to some other major firsts for 131 Consulting: The brand moved into its own office space and hired its first employee. Stephanie also joined NYWIFT (New York Women In Film & TV) and has already been added to their communications committee, as well as been asked to be a guest speaker and social media ambassador for the organization. This focus on the entertainment industry has lead 131 to launch a second arm of the company, called 2108 Media, which will be focusing entirely on brand and media strategies for the entertainment industry.

Stephanie first got her start in social all the way back in the days of MySpace. She had always been fascinated with the way the internet brought people together via chat rooms and message boards, and these new sites that tightly wove those features altogether had her hooked. But it wasn’t until the fall of MySpace and the rise of Facebook that she started to notice the value in using social to promote a brand. She was definitely one of the first adopters, stating. “I’ve been doing social media marketing since before the term even existed.”

The catalyst to that came when she was working at a nonprofit in Newport Beach, CA. “It all goes back to a bet I made with an old boss – an almost forty-year veteran of nonprofits. He didn’t think anyone was looking at social media, and let me use two fairly coveted tickets to one of our events to prove him wrong by offering them up on Twitter to the first person who showed up at our office to collect them. He gave me 3 weeks to show someone would, in fact, claim them. I got them claimed in 45 minutes.”

Lastly, Stephanie’s focused and hard-working approach has to lead to great results and is even reflected in both company names. Regarding her company’s brand names, she says “I’m a lover of half marathons and that’s where my company names come from. If you move the decimal over one place, it becomes 13.1, which is the distance of a half marathon. With 2108, it’s the same thing, just 21.08, and in kilometers!”

Starting a new business can sometimes be exhilarating, especially when you complete a big project or cross some major mile-marker, but much like training for a half-marathon, it also can have moments of tediousness and requires hard work and endurance. Stephanie has brought all of that to 131 Consulting and 2108 Media with great results, and I look forward to seeing what she does in the future.

“Fair Use” Exceptions to Copyright Infringement

Part 1: Parody v. Satire

In the coming weeks, I will be writing posts here about the various exceptions to copyright protection. Once you’ve created a copyright, you have significant and powerful tools allowing you to control how the copyrighted subject matter is used. But there are also ways of using copyrighted material that is permissible, even without permission. Most of these exceptions, in the United States at least, are grounded in an overarching rule of ‘fair use’.

You may have heard that phrase bandied about the internet, but do you know what it means? Not many do. “Fair use” are exceptions to copyright that courts have granted over the years that are now codified in 17 U.S. § 107.

“Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.”

As you can see, the bill itself includes certain usages that are “per se” permissible, such as teaching, scholarship, and research, but it left open a broader test to determine if a defendant’s usage of the material was infringement. The court must use a four-part test to determine “fair use” and over the years, parody has generally been designated fair use under the four-point test.

So, how does parody and satire fit into all this?

The Supreme Court ruled in Campbell v. Acuff Rose Music, Inc. that parodies are fair use under copyright law. When most people use the word “parody” they’re thinking of a whimsical, funny, fairly lighthearted play off/version of an original work. But the Supreme Court relies on a somewhat different definition of parody.

The Supreme Court has ruled: “a parody may qualify as fair use under § 107.  According to the Court, a parody is the ‘use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works’.” (Campbell, 580).

The Court even went so far as to rule that for-profit parodies were included under the fair use umbrella. But – and this is a very important but – the metes and bounds of this protection are narrower than they seem.

Because, also in Campbell, the Supreme Court established what is essentially an exception to an exception; more precisely, it specified that while parody (as defined above) was clearly fair use even if used in commerce, satire would be given significantly less leeway under the four-part test (especially if the satire is used in commerce.)

The Court reasoned that satire: “has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh’. The work is less transformative, and other fair use factors, such as whether the new work was sold commercially, loom larger. The Court explained further that while a parody targets and mimics the original work to make its point, a satire uses the work to criticize something else, and therefore requires justification for the very act of borrowing.  As a result, the Court appears to favor parody under the fair use doctrine, while devaluing satire.” See here at § B.1 referencing Campbell at 581.

The Court relied on two main aspects of parody that justified the exception: (1) whether the usage commented on or criticized the original work (and was thus transformative in nature), and (2) that it would be unlikely that the work would ever be licensed because a copyright holder was unlikely to give a license to someone who is planning to criticize them.

Essentially, the court found that making parody a copyright exception was a net good for society. But the same could be said for satire, and the court battles over what should be defined as parody and what should be defined as satire shows clearly that the Campbell decision was not a straightforward decision, as courts across the country now had to determine what exactly counted as a parody (or didn’t count as a satire).

But what about Weird Al?

I don’t think you can talk about parody in the United States without at least mentioning Weird Al Yankovic: For those who don’t know about him, he’s a singer, songwriter, and accordian-playing polka master who also does comedic rewrites of popular songs. And Weird Al’s songs have definitely tested courts ability to pinpoint the line that separates parody and satire. At face value, Weird Al’s songs seem to fit into the satire category – when an infringer simply makes use of the underlying work as a jumping off point without any political or editorial message – especially since many of his songs are so light-hearted. And yet, as detailed in this article, courts have been split forever over whether Weird Al is parody or satire.

Luckily for Weird Al, he has never had to face a judge for a definitive determination of whether his works counted as parody because he takes one critical step in (almost) all of his work. Specifically, he always seeks permission from the artist of the songs he is parodying and is most often given a license by the artist. That has lead some to argue in lower courts that Campbell was wrong in assuming that copyright holders would be unwilling to license their works for the purpose of parody, but Weird Al may be something of an exception to that because his gently comedic remakes of popular songs are frequently considered rights of passage for musicians who are happy to grant him a license.

Long Story Short:

In summary, usage of copyrighted material for the purpose of commenting on or criticizing the original material is a parody and is a recognized exception to copyright law. However, the usage must reflect back on the original; usages that simply use a previous framework for comedic effect are not transformative enough to count as fair use, though what constitutes a comment or critique of the underlying work is something of a gray area, as demonstrated by Weird Al’s work. But, in the end, the safest way to protect yourself when using someone else’s copyrighted material is to license it.

The Law Office of Erin Dwyer-Frazier represents clients in all stages of the copyright process. Reach out today and let’s see how I can help protect you and your work!

DISCLAIMER: This blog post may be considered advertising under Massachusetts Supreme Judicial Court Rules. The content of this website is for informational purposes and should not be considered legal advice. This web page does not establish an attorney-client relationship. Please refer to the terms and conditions for more.

So, You Wrote a Song….Or Did You?: Licensing vs. Ownership in Copyright

So, if you follow me on Twitter, you know that my brother and I took a day trip to New York City this week to see the Broadway show Waitress, that first premiered in 2016. Sara Bareilles – who also write the music and lyrics – and Jason Mraz play the two starring roles – roles that were filled by Keri Russell and Nathan Fillion when the movie Waitress was first released in 2007. Even though the movie itself was only moderately successful, stage rights for the film were purchased shortly after it was released and the creative team, including Sara, began working on bringing it to the stage. Since then, the show has become a massive success and if you have a chance to see it, you should take it.

Waitress, just like any major creative undertaking, is a collaboration. A lot of love, sweat, and tears from a lot of different people go into every element of the production and it shows. But what doesn’t show (and if everyone has done their job right, should never show) is the complicated legal framework that lays out not only who gets credit for writing the show, creating the costumes, or playing the oboe, but also what that credit entails and how each of those people will be compensated.  

Now, for the vast majority of you creators, the legal issues you face won’t be as complicated as those involved in staging a Broadway production. But, for every creator, understanding how collaboration impacts your copyrights is essential.

For the purposes of this post, let’s imagine you’re a poet, and you have a good voice and would like to convert your poetry into music. The only problem is you really don’t like other people and you have no interest in starting a band. Or having any collaborators at all, if you can avoid it. Luckily for you, you’ve met a musician named Hope, and she can really lay down a beat. She’s a little odd, she’s really into feathers, and her business card says that her job is “To Sing the Tune Without the Words” which you feel might be a bit pretentious, but who are you to judge. Anyway, you’ve listened to some of her raw beats and liked them, but does that mean you have to work with her? What are your options?

You Have Three options:

1. Hire Hope to create music as a “work for hire”:

Section 101 of the Copyright Act allows employers to take direct ownership of the copyright associated with their employees’ creative work in two situations: (1) if the copyrightable material was created by the employee in the normal course of their employment (i.e. a W-2 employee performing their normal job) or the work was specially ordered or commissioned for use with a written agreement using specific language that the work is either “made for hire” or that it is “a work made for hire” and the work must fall into one of the following nine specific categories: (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, [or] (9) an atlas. If the arrangement doesn’t meet all of these tests, it will not be considered a “work-for-hire” and ownership of the copyright stays with the creator.

Is this a good option for you and Hope? There are benefits associated with “work-for-hire” arrangements for you, specifically, it means that at the moment of creation the copyright for the music Hope creates for you belongs to you. It also comes with complete ownership of the copyright and the authority to do whatever you choose with the work, including editing it, sampling it, altering it, or anything else necessary, without consulting with Hope. This is why large collaborative projects, like movies or Broadway musicals, will often try to rely on “work for hire” arrangements, so that they won’t have to worry about transferring copyrights from creators who may try to limit how their work can or can’t be used. And that is also why collaborative projects and collective works are amongst the categories that allow independent contractors to be used on a work-for-hire basis, but works without such complicated ownership issues will default to the “traditional” copyright rules.   

So, though audio recordings can qualify as works made for hire, it’s not guaranteed that your album, as a larger project, will qualify as a collective work or compilation as required by the Copyright Office because of your tendency to work alone with very few collaborators. In addition, you may find that Hope is reluctant to agree to a work-for-hire arrangement. Hope may want one of the next two options, because licensing or transfer agreements can give copyright creators greater protections when doing work as part of a larger project.

2. Licensing the copyright.

One of the most basic foundations of copyright law is also one of the most misunderstood; specifically, that a copyright is a legal right that vests (aka stays) with the creator when the original work is created. To have a valid copyright, all you need to do is create. Now, there may be limits to what you can do with that copyrighted work and certain statutory protections only apply to registered copyrights, but the act of creation itself also creates the copyright. So, presuming that you did not specifically commission anything from Hope as a “work-for-hire,” you and Hope will have to come to some sort of agreement that gives you some rights over Hope’s copyrighted work.

Now, beginning with the assumption that Hope has already created a beat or an instrumental that you want to use on your album, Hope could offer to simply license the rights to use the instrumental to you. For Hope, licensing the copyright gives her the most control over how her work is used or not used. Theoretically, Hope could place limits on how you can change the instrumental, where the instrumental can be played, who else can use the instrumental, or even reserve the right to sell or lease the rights to use the instrumental to someone else. Hope could also create some kind of ongoing royalties or licensing fee arrangement that would require you to continue to pay Hope going forward (especially if the song were to become a hit.) And, as the key issue, Hope could retain authority to revoke the license if you were to violate the terms of your agreement (i.e. if you didn’t pay what was owed or misused the instrumental) which is a pretty powerful bargaining chip since without the instrumental, you’re stuck with just your poetry.

So, it’s pretty clear why Hope would like a licensing arrangement, but are there any positives for you? One potential positive for you in accepting a license is that it is likeliest the cheapest way to get rights to Hope’s instrumentals. And if the beat or instrumental is fairly generic, you may not even care about having exclusive rights to use it. But a license is always going to be risky, especially for someone like you, who doesn’t want any kind of on-going business or collaborative relationship with Hope. For a loner who just wants to write poetry and make music, a license can be a permanent tether keeping your work from taking flight. So what’s probably the best middle-ground for you and Hope?

3. Permanent transfer of the copyright

In all likelihood, the best approach for you and Hope is a Copyright Transfer Agreement. Sections 201-205 of the Copyright Act cover the rights of copyright holders to transfer those rights to others. This is distinct from a “work-for-hire” situation because the rights to the copyright have vested with the creator and now the creator is choosing to transfer those rights to another person. This is also distinct from a license, because the creator is transferring their entire rights under the copyright (though the transfer can be subject to some limitations) and granting the purchaser the right to register the copyright in their name. The terms and conditions of a transfer agreement can vary depending on the type of work but generally, once a transfer is completed, the transferee (in our case, you) will have full use and ownership of the copyright, limited only by the same limitations that would have governed the creator.

Why is this a good middle ground for both you and Hope? For you, a copyright transfer agreement gives you what you want most, the ability to use Hope’s instrumentals in your music without having to deal with Hope herself. It also allows you to register a copyright for both the lyrics and the instrumentals for your song, which makes enforcing your control over the song easier further down the line. It also allows you to make changes to the instrumentals or even sell or lease them to someone else without Hope’s approval.

But a copyright transfer agreement can also be a valuable tool for Hope, especially if she frequently records beats or instrumentals for other singers and artists. By using transfer agreements (as opposed to the “work-for-hire” arrangement discussed above), Hope has a contract that allows her to revoke the transfer if contractual elements aren’t met, so if Hope is not paid, or if you otherwise violate the transfer agreement, Hope has the legal right (usually as laid out in a termination clause in the agreement) to revoke the transfer and reclaim her copyright. Hope can also require that credit be given when her instrumental is used on the album. While this may not seem like a great deal of authority, it is still a powerful way for Hope to protect both her financial interest in the deal but also build a reputation through her work (as opposed to many, many work-for-hire artists and creators who have simply been erased by studios, publishing companies, or comic-book companies.)

Even if you’re not a singer, managing your copyrighted material is vital and anyone who creates and/or sells creative works should be educated about their rights and how to protect them and enforce them. For almost any freelancer or independent creative, having some kind of copyright license agreement and copyright transfer agreement to use with clients is a good idea. And if you aren’t sure where to start, give me a call. We’ll be able to find the right solution for you and your creative needs.

DISCLAIMER: This blog post may be considered advertising under Massachusetts Supreme Judicial Court Rules. The content of this website is for informational purposes and should not be considered legal advice. This web page does not establish an attorney-client relationship. Please refer to the terms and conditions for more.

Hope and Change in 2018: Congratulations to my client Katherine K. Rice, now Mayor Rice of Geronimo, Oklahoma

To begin the year, I wanted to take a moment to highlight one of my clients who is creating change in her world, anyway she can.

Katherine “Kylila” Rice founded her not-for-profit corporation Poetic Change in 2014 with the mission to “Break Barriers with Poetry and Performance. Build bridges through the arts, education, and innovation.” After attending West Point as a cadet, Kylila had turned to poetry, performance, and various other forms of art to help with her own emotional well-being. She learned the power behind it, and wanted to share how someone could use that power to make change, in themselves, in their community, and in the world. She also wanted to highlight other artists who were using their work to effectuate change. She wanted her own voice to be heard.

And it is a brilliant voice. When Kylila performs, her light shines.

And now, Kylila has stepped up in an even bigger way to make change and improve her community: This past November, Katherine K. Rice was elected mayor of Geronimo, Oklahoma.

So, I wanted to open the New Year by congratulating Kylila on her win; Kylila’s election was a ray of sun in what was frequently a bleak year. Not just because Kylila will do great work for the people of Geronimo, but because Kylila is part of a movement sweeping the nation of more women and people of color running for office at all levels of government.

Local politics don’t usually make national news, but local elected officials control a lot of our nation’s most critical institutions: they run our schools, they set police policy, they control how local court fees are set, and they determine how our elections are run and how our electoral maps are drawn. So as I look forward to 2018, I am hopeful. Because we desperately need more people like Kylila running all of those things with both passion and compassion, and I am hopeful that she will be the vanguard of a much larger movement.

So, congratulations, Mayor Rice. May your achievement shine bright as an example to anyone who doesn’t think their voices will be heard. We hear you now, and we’re listening.