Music Industry and First Amendment Quiz

Primary Revenue Sources for Musicians

• Publishing: Income from songwriting and composition.
• Performing: Revenue generated from live concerts and performances.
• Touring: Earnings from touring, including ticket sales and merchandise.

Breaking into the Music Industry

• Artist discovery: Identifying talented musicians with potential for success.
• A&R Execs: (Artists & Repertoire) Executives search for and sign promising artists.

The Players in the Music Industry

• Composers: Individuals who create and write original musical compositions.
• Performers: Musicians who interpret and perform musical works.
• Producers: Individuals responsible for the overall sound and quality of recordings.
• Music Publishers: Companies that own and manage the rights to musical compositions.
• Performance Rights Societies: Organizations that collect and distribute royalties to songwriters and publishers for public performances. (examples: ASCAP (American Society of Composers, Authors and Publishers), BMI (Broadcast Music, Inc), SESAC (Society of European Stage Authors and Composers))
• Record Companies: Organizations that produce, distribute, and market recorded music.
• Tour Promoters: Individuals or companies who organize and manage concert tours.

Common Pitfalls in the Music Industry

• Bankruptcy and Tax Evasion: Financial challenges faced by artists and businesses in the music industry.
• One-Sided Contracts: Unfair contracts that disproportionately favor record labels or management companies.
• Importance of Lawyers: Essential role in protecting artists' rights and ensuring fair contracts.

Guilds

• Purpose: Organizations that advocate for the rights and interests of members in the entertainment industry.
• Contracts: Negotiate contracts with studios, record labels, and other industry players.
• 2023 Strikes: Recent labor actions by entertainment industry guilds, including SAG-AFTRA (Screen Actors Guild-American Federation of Television and Radio Artists) and WGA (Writers Guild of America).

Importance of Guilds

• Exist in the background: Provide essential support and advocacy for members, even when not directly involved in negotiations.
• Complexities: Guilds navigate issues involving the First Amendment and freedom of speech.

First Amendment

• Constitutional guarantee: Protects freedom of speech, press, religion, assembly, and petition.
• Applicability: Applies to both individuals and organizations, including protesters, artists, and businesses.

Does the First Amendment Apply?

• Campus protests: At USC, UCLA, and other educational institutions.
• Protests outside the US Capitol: Political expressions and demonstrations.
• Family gatherings: Private gatherings of individuals.
• Netflix: Streaming services that host various forms of content.
• Donald Trump’s Tweets: Social media platforms and political speech.

Types of Government Action

• Laws: Formal legislation passed by a governing body.
• Rules: Regulations established by administrative agencies.
• Public Schools: Educational institutions funded by the government.
• Police enforcement: Law enforcement actions and interventions.

First Amendment Protections

• Words: Verbal expressions of opinion or beliefs.
• Actions: Conduct that communicates a message.
• Freedom not to speak: The right to refrain from expressing oneself.
• Unpopular and controversial speech: Safeguards for expressions that may be objectionable or disagree with dominant views.

Government Regulations

• Content-based regulations: Restrictions that target specific types of speech based on their content.
• Standard of review: Strict scrutiny: A high legal standard used to evaluate the constitutionality of government actions that limit speech.
• Narrowly tailored: Regulations must be precisely targeted and not overly broad.
• Compelling governmental interest: The government must have a strong reason for restricting speech.

Permissible Government Regulations

• Public Forum: Places traditionally open for public expression, such as parks and sidewalks.
• Non-Public Forum: Spaces not intended for open expression, such as military bases or schools.

Time Place and Manner Restrictions

• Public Forum: Regulations must be content-neutral, narrowly tailored, and leave open alternate channels of communication.
• Non-Public Forum: Restrictions must be viewpoint-neutral and rationally related to a legitimate government interest.

Types of Unprotected Speech

• Fighting Words: Speech that is likely to incite immediate violence or a breach of peace.

Incitement

• Brandenburg v. (Jenny Jones) (2002): Supreme Court case that established the "imminent lawless action" test for incitement.

Television

• Self-regulation: Industry standards and practices that govern television content.
• FCC regulations: Federal Communications Commission regulations that restrict certain types of content on broadcast television.
• Obscenity: Content that is deemed to be offensive or unsuitable for public consumption.
• Indecency: Content that may be considered offensive but is not necessarily obscene.
• Profanity: Use of offensive or blasphemous language.
• Prohibited between 6AM and 10PM: A time-based restriction on broadcasting certain types of content.

Music

• Incitement: Music that can potentially inspire violence or illegal activity.
• Artistic Value: The aesthetic and creative merit of musical works.
• Self-regulation: Industry codes and practices that guide the creation and distribution of music.

Intellectual Property: Copyright

• Intellectual Property: A category of intangible assets, including inventions, literary and artistic works, designs, and symbols.
• Copyright: A legal right that protects original works of authorship, including music, literature, art, and software.
• Trademark: A symbol or design used to identify and distinguish a company's goods or services from those of others.
• Patent: A legal right that protects a new invention or process for a limited time.
• Trade Secret: Confidential business information that gives a company a competitive advantage.

Ideas

• Simple ideas: Generally not protected by copyright.
• Protection: Copyright protects the expression of an idea rather than the idea itself.
• Express contract: A written or oral agreement between parties.
• Implied contract: An agreement that is not explicitly stated but is inferred from the parties' actions or conduct.

Quasi Contract

• Express Contracts: Agreement with defined offer, acceptance, and consideration.
• Idea Theft: A situation where someone uses another's idea without permission or compensation.
• Plaintiff confers a benefit: The person who has the idea provides something of value to the other party.
• Plaintiff reasonably expects to be paid: The person who has the idea anticipates receiving compensation for their contribution.
• Defendant would be unjustly enriched: The party who uses the idea without compensation would gain an unfair advantage.
• Blaustein v.Burton (1970): A landmark case that established the concept of quasi-contractual protection for ideas.
• Jordan-Benel v.Universal City Studios, Inc: Case involving alleged idea theft in the entertainment industry.

Release Agreements

• Prevent legal action: A contract used to release a party from liability for future actions.
• Non-disclosure Agreements: Agreements that require parties to keep confidential information secret.
• Disclaimer of confidentiality: A clause that specifically excludes certain types of information from the scope of confidentiality.
• Contracts of adhesion: Contracts that are pre-written and offered on a "take it or leave it" basis.
• Spinello v.Amblin Entertainment (1994): Case involving a contract of adhesion and the potential for unfairness.

Studios: Development Agreements

• Work-made-for-hire: A work created by an employee as part of their job or under a specific commission.
• Ownership of rights: In work-made-for-hire agreements, the employer typically owns the copyright to the work.

Copyright

• 17 U.S.Code § 102: The section of the U.S. Copyright Act that defines the types of works that can be copyrighted.
• Original works of authorship: Works that are created independently and are not simply copies of other works.
• Fixed in a tangible medium of expression: Works need to be embodied in a physical object, such as a written document or a recording.
• Idea, procedure, process, system, method of operation: These are not copyrightable subject matter.

Copyright Requirements

• Copyrightable subject matter: The work must be a type of work that is protected by copyright law.
• Fixation in a tangible medium of expression: The work must be recorded in a way that can be perceived, reproduced, or communicated.
• Originated with or created by the author: The work must be the author's original creation.

Derivative Works

• Gracen v.Bradford Exchange (1983): A case involving the creation of derivative works.
• Substantial differences: Derivative works must have significant differences from the original work to be protected by copyright.

Copyright Formalities

• Automatic protections: Copyright protection arises automatically when a work is created and fixed in a tangible medium of expression.
• Registration benefits: Registering a copyright provides a number of benefits, including legal presumptions of ownership, a record of copyright ownership, and the ability to file an infringement lawsuit in federal court.

Ownership

• Sole ownership : The copyright to a work is owned by a single individual.
• Joint Work: A work created by two or more authors with an objective manifestation of merging their contributions into a whole.
• Work for Hire: A work created by an employee within the scope of their employment or under a commission agreement.
• Instance and expense: The work must be specifically commissioned and created at the expense of the employer to be considered a work for hire.
• Marvel Characters v.Kirby (2013): A case involving the ownership of copyrights to comic book characters.

Work for Hire – Sample Language

• Ownership: The work and all rights associated with it are owned by the employer.
• “Work-made-for-hire”: A specific category of works that are subject to special ownership rules.

MCA (1987) (E.T.)

• “Blurred Lines” case: A legal case involving allegations of copyright infringement related to the song "Blurred Lines."
• “Thinking Out Loud” case: A legal case involving allegations of copyright infringement related to the song "Thinking Out Loud."

Strategies to Defend

• Contributory Infringement: Providing the means or tools for others to infringe on copyright.
• Know or have reason to know of infringement: The party accused of contributory infringement must have known or had reason to know that infringement was occurring.
• A&M Records v.Napster (2001): A landmark case involving the issue of contributory infringement related to file-sharing.
• MGM v.Grokster (2005): Another important case involving contributory infringement and peer-to-peer file-sharing.

Defenses

• Parody: A comedic or satirical work that imitates or mocks an original work.
• Fair use: A legal exception to copyright infringement that allows the use of copyrighted material for certain purposes, such as criticism, commentary, or news reporting.
• Innocent infringer: A person who infringes on copyright without knowledge or intent.

Fair Use

• Purpose and character of the use: The reason for using the copyrighted material.
• Commercial or educational: Commercial use is more likely to be considered infringement than educational use.
• Transformative use: A use that changes the original work in a way that is substantially different from the original.
• Nature of the copyrighted work: The type of work being used, such as a creative work or factual work.
• Amount and substantiality of the portion used: The amount of copyrighted material used in the new work.
• Effect of the use upon the potential market value: Whether the use of the copyrighted material is likely to harm the market for the original work.

Fair Use – Examples

• Harper & Row v.Nation Enterprises (1985): A case that established important principles of fair use.
• Sheree Whitfield: A reality television personality who was the subject of a fair use case.
• The Real Housewives of Beverly Hills ASMR: A case involving the use of copyrighted material in an ASMR video.

Fair Use - Issues

• Unpredictable: The fair use doctrine is not always easy to apply and can be subject to different interpretations.
• Jury or judge decides: The determination of fair use is often left to the discretion of a jury or judge.

Parody

• New work based on an old work: The parody must reference or use the original work.
• Old work is clearly recognizable: The original work should be easily identified.
• Criticizes or comments on the old work: The parody should provide some form of commentary or critique of the original work.
• Does not take more than reasonably necessary: The parody should not use more of the original work than is necessary to achieve its purpose.
• Does not impact the market for the old work: The parody should not significantly harm the market for the original work.

Remedies

• Injunctions: A court order that prohibits someone from doing something.
• Money damages: Compensation for financial losses caused by copyright infringement.
• Statutory damages: A fixed amount of damages that can be awarded in certain cases.
• Marcus v. Rowley (1983): A case involving the award of statutory damages.
• Criminal liability: In some cases, copyright infringement can be a criminal offense.
• Attorneys fees: The court can award attorneys' fees to the prevailing party in a copyright case.

Intellectual Property: Trademark

• What is a trademark: Any word, phrase, symbol, design, or combination of these things that identifies your goods or services in the marketplace.
• Distinguish from competitors: Trademarks are legally protected to prevent others from using similar marks that could cause confusion among consumers.

Difference from copyright?

• Copyright protects original works of authorship: A written song, a painting, a video game.
• Trademark protects a symbol used to distinguish a product or service in the marketplace: A company logo, a brand name, or a slogan.
• Any false suggestion of sponsorship or endorsement: Trademarks can be infringed upon by unauthorized use of a registered mark on a competing product, or even just by using a mark that is too similar to a registered mark, even if the infringing product is completely different.

Parody

• Likelihood of confusion: Whether consumers are likely to be confused as to the source of a product or service bearing a parodied trademark.
• Dilution: Whether the parody is likely to harm or weaken the value or distinctiveness of the original trademark.

News Exception

• Fair use for news reporting: A news organization may use a trademark in its reporting without infringing on the trademark rights of the owner.

Remedies

• Injunctive relief: A court order that prohibits someone from using a trademark.
• Monetary Damages: Monetary compensation for losses caused by trademark infringement.
• Attorneys Fees: The court can award attorneys' fees to the prevailing party in a trademark case.

Personality Rights

• Right of publicity: A legal right that protects individuals from having their names or likenesses exploited for commercial purposes without their permission.

Privacy Rights

• Intrusion upon seclusion: An invasion of someone's privacy by intruding into their private affairs or solitude.
• Public disclosure of private facts: Disseminating information about someone's private life that is highly offensive and not of legitimate public concern.
• False light: Publishing information about someone that is misleading or portrays them in a false light.
• Appropriation: Using someone's name or likeness for commercial purposes without their permission.
• State law rights: Personalities rights are generally protected by state laws, and the specific protections can vary from state to state.

Intrusion Upon Seclusion

• Elements:
  • Intentional intrusion: The action must be purposeful and not accidental.
  • Private concerns: The information must be considered private and not publicly known.
  • Highly offensive to the reasonable person: The intrusion must be considered unreasonable and unacceptable by a reasonable person.

Public disclosure of private facts

• Elements:
  • Public disclosure: The information must be disseminated to the public.
  • Private fact: The information must be about someone's personal life and not generally known.
  • Highly offensive to a reasonable person: The disclosure of the information must be considered unreasonable and unacceptable by a reasonable person.
  • Is not of legitimate concern to the public: The information must not be of public concern to the extent that it justifies its publication.
• Examples: The disclosure of a person's medical records or sexual history.

False Light

• Elements:
  • Published information about the Plaintiff: The information must be disseminated to the public.
  • Portray the plaintiff in a false or misleading light: The information must create a false impression about the plaintiff.
  • Highly offensive or embarrassing to the reasonable person: The information must be considered unreasonable and unacceptable by a reasonable person.
  • Defendant published with reckless disregard for its offensiveness and truth: The person who published the information must have been aware or should have been aware that the information was false.

Appropriation

• Elements:
  • Knowingly: The person must be aware that they are using someone's name, voice, or likeness.
  • Uses another’s name, voice, or likeness: The person must use someone's identifiable features.
  • For commercial purposes: The person must be using the name, voice, or likeness to promote a product or service.

Examples

• White v.Samsung (1992): A case involving the use of a robot that resembled the celebrity Vanna White.
• ETW Corporation v.Jireh Publishing (2003): A case involving the use of the image of the late Christian evangelist, Billy Graham.

Defenses to Privacy Claims

• Death: In some cases, a right of publicity claim may survive the death of the individual.
• Consent: If a person provides their consent to have their name or likeness used, it is generally considered a valid defense.
• Newsworthy: Publicity rights generally do not apply to the use of someone's likeness in news reporting or other forms of public interest.
• Transformative: If a work is significantly different from the original, it may be considered a transformative use and be protected by the First Amendment.
• 1st Amendment: The First Amendment provides important protections for freedom of speech and the press.

Damages

• Monetary damages: Compensation for financial losses caused by a violation of personality rights.
• Injunction: A court order that prohibits someone from using a person's name, voice, or likeness.
• Attorneys Fees: The court can award attorneys' fees to the prevailing party in a personality rights case.