Have you ever heard the term “obtaining clearances” or “clearing the rights?”  Whether or not you have heard either of these terms, a quick brush-up is probably in order.

Let’s start at the beginning.  Rights to what you might ask? Rights to the intellectual property of others would be the correct answer.  The owners of creative works have many exclusive rights in their property and you don’t want to violate any of them.

In an average day you probably encounter the results of the public use of the intellectual property of others at least hundreds if not thousands of times.  And, you probably aren’t even aware of it. For example, the music that you hear on the radio or on your ipod, for example, is owned by many people.  There are lyricists, composers, singers, publishers, instrumentalists and potentially even others who have a claim to the exclusive rights to use their recording, live performance or even the sheet music.

Walk down the street and notice how many Coca-Cola signs you see; how many Toyota nameplates you view on the cars around you; and, how many products you either use or purchase that are from well known manufacturers.  Note the designation ® on all of them which indicates that they are officially registered trademarks in the US Patent and Trademark Office. Any infringement of these rights entitles the legal owner to sue to enforce their exclusive ownership and to potentially obtain damages and attorneys fees from the infringer.

Clearing the rights to the intellectual property of others can be very complex and have significant monetary consequences to your budget.  Clearing the rights then, means obtaining  the permission of the owners of intellectual property to use their creative work in your motion picture, your still photo’s, your advertising material and so on.

There are many variations in the type of permission that you can obtain including the following:

1. Is the permission being sought and granted exclusive or not?
2. Is the permission geographically limited (only the use in the US will be permitted)?
3. Is the permission time limited (you can only use the creative work for 6 months)?
4. Is the permission limited by medium (you can only put my trademark in your still photos and not in your motion picture)?
5. Is the permission free or must I pay for the rights to use your intellectual property (the right to use my copyrighted piece of art in the background of your interior shot will cost you $1,500)?

The right to use the intellectual property of another is called a license, and in order to protect your financing source, protect your distributor, and to appease your errors and omissions insurance policy company, you need to obtain a license in every event of the use of another’s work. There are some exceptions to this general rule, but seek legal advice to assure yourself of the proper use of this property before you start to produce your project. Avoid “ready, fire, aim” at all costs!

Make sure that your agreements specifically define the rights that you are getting and paying for, and have been well thought through.  Otherwise, you could be faced with the prospect of paying significantly more for rights that you should have obtained initially.

Just as you are the expert in producing your film, use an expert who understands rights and permissions to resolve these important issues before it’s too late.

Every successful artist has a manager (perhaps several) and the agreement between the manager and the artist should be clear and in writing. The relationship between an artist and manager may start out informally or may be based on a verbal agreement but should always be thought out and detailed. While the common goal of ensuring the artist’s success can produce a sense of camaraderie and partnership, far too often achieving success (and receiving the money that follows) can result in disputes and even lawsuits.

Early on in the relationship, the terms are often simple: the manager will promote the artist and take a percentage of the artist’s income. But does the manager take his cut before or after the artist’s expenses? And which expenses are calculated into the deal? For example, if a headlining band gets paid $1000 to play a show and the headlining band pays the opening band $200, does the headlining band’s manager take a percentage of $1000 or $800?

The example above is a simple illustration but shows just how many ways things can very complicated very quickly. What are the manager’s responsibilities? And what happens if he fails to fully satisfy those goals? Does he not get his full percentage? Does he not get any commission at all?

Any business deal where money changes hands should be in writing. When a manager begins working with an artist, the manager is investing his time and efforts in the artist’s career. The manager may get the artist a record or movie deal or a sponsorship agreement that continues to pay the artist for many years. For this reason, management agreements often provide for the manager to continue to get paid after the management relationship is terminated. For the artist: do you want to continuing paying your manager after you fire him or he quits? For the manager: do you want to make sure you get paid for your work even if you’re not managing this artist for the rest of his career? All these terms must be in writing or they will be very hard to enforce!

A management contract answers countless questions and lays out the terms of the relationship so that disputes (and lawsuits) can be avoided in the future. While the artist and the manager are on the same “team” for most endeavors, they are potentially adverse parties in the negotiation and execution of a management agreement and therefore should be represented separately. Although a fledgling artist or new manager may not have discretionary funds to spend on a management contract, the money (and resources) it can save in the future makes it a crucial step in any career.

Sunday, March 22, 2009
Event Review: Create Denver Expo

The 4th annual Create Denver Expo was a day-long event providing creative individuals and businesses an opportunity to learn and gain awareness of the various services and programs available in the Denver area. There were 37 workshops on various topics led by experts in the fields of marketing, personal and business finance, media relations, music and film production, and public art.

The Anatomy of a Major Studio Film Deal (Replin & Rhoades, LLC) was my favorite workshop. Steve Replin and Laurie Rhoades are both attorneys that specialize in entertainment law. Their practice includes the representation of film makers, writers, musicians, studios, museums, those in the fashion industry, and all others in the creative arts. During the workshop they basically broke down a typical film production contract, pointing out the areas one should be concerned with and the mistakes people have made.