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Julian Haffner is a partner at Richa Haffner, P.C. located in Bethesda, MD. He received his J.D. from Howard University School of Law and his B.A. from Swarthmore College. Julian counsels clients in the entertainment industry, focusing on forming and advising small to mid-sized entertainment entities, drafting and negotiating contracts related to music, television, and film, and dealing with trademark, copyright, and other intellectual property matters. His entertainment clients include recording artists, composers, music producers, music publishers, record companies, and independent film and television producers.

He can be reached at haffner@richahaffner.com

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Entertainment & Sports Law Blog
A Picture's Worth More Than a Thousand Words PDF E-mail
Friday, 20 March 2009 08:56

The Chris Brown/Rihanna saga has reconfirmed what we already knew. Like moths to a flame, collectively, we are drawn to celebrity drama-- and can't get enough. The more salacious the details the better. 

Celebrities almost by definition don't enjoy the kind of privacy rights we mere mortals do. Their lives, whether intentionally or not, are open books, and grist for the gossip mill. Demand for all things celebrity is so great that a certain segment of the population has dedicated their lives to capturing every detail of the celebrity life. No doubt because doing so has become a lucrative pursuit. Rihanna's post-beat down pic was reportedly sold for $62,000.00.

Is a topless pic of Janet Jackson the same as releasing a photo of an alleged victim at her worst and most vulnerable?Should their be boundaries?   A celebrity rights group called Stoparazzi thinks so. They are championing a new law against releasing photos or information that exploits victims of crimes, and would make doing so illegal whether there was money exchanged or not.

The bill reads in pertinent part : "If a private crime photo is distributed, the receipt of money for that act is irrelevant and does not diminish the detrimental effect such public distribution of private crime photos could have on the victim, the case itself, other victims of similar crimes etc. Just because the person who leaked it may have done it, for example, because they were disgruntled or vindictive or even, perhaps, to help the defense, and not for money, per se, should not make it legal." 

What do you think?

 
Family Guy Demonstrates Copyright Supremacy over Bourne PDF E-mail
Thursday, 19 March 2009 18:59

altScore another victory for free speech and the parody fair use defense to copyright infringement! Family Guy prevails again! Somewhere Uncle Luke is smiling!

 
And God Said... PDF E-mail
Wednesday, 11 March 2009 00:00

The NFL has settled the so-called "Voice of God" law suit by agreeing to pay an undisclosed sum to the estate of John Facenda - the legendary football announcer dubbed by many NFL fans as the "Voice of God." In the suit Facenda's estate  accused NFL Films of improperly using Facenda's voice in a promotional film for a John Madden video game, violating Pennsylvania's right of publicity statute, as well as the Lanham Act.

 

 
The Resurrection of Hip Hop? PDF E-mail
Tuesday, 10 March 2009 00:00

In the late 80s Public Enemy boldly declared "It takes a Nation of Millions to Hold Us Back". They may have overestimated that number by a few million. See, it would take only one judicial decision to hold them and a whole movement back. The court's decision in Grand Upright Music v. Warner Brothers Music  mandated that hip hop artists wishing to incorporate  sound recording samples must clear them. The court's message was clear and unambiguous  when it  declared anything less would be outright theft.  However, as one commentator has suggested,  an unintended consequence (or intended I suppose based on one's perspective) of the court's decision has been that creativity in general, and in hip hop in particular, has suffered as a result of the burndensome sample clearance process that has emerged in the wake of the Grand Upright decision.

The current licensing process is onerous and often costly. A party wishing to clear a sample must first track down all of the copyright owners - no easy feat. Assuming a party wants to sample an existing master, he would have to secure the two separate licenses: one for the use of the sound recording, and one for the underlying composition (rarely are the owner of the sound recording and the underlying composition the same). To add to the complexity, there are often multiple owners of the same underlying composition, each of whom must give approval before a license can be granted. On top of that, there are no standard rates for such licenses leaving each party to name his own price or none at all. So after all the time and effort spent to track down the appropriate rights holders, a producer can ultimatley be left with nothing for his troubles.

Generally speaking, I believe sampling, at its best, demontrates tremendous skill and creativity. I also believe sampling can be beneficial to all parties involved. For example, some of hip hop's seminal works borrowed from original songs that were cut, scratched, looped and flipped in creative ways to create something fresh and new. A generation of hip hop heads was raised and sustained by such artistry and creativity. At the same time, publishers benefitted and continue to benefit by reaping revenues from the licensing of  not only well known hits, but also obscure cuts that would otherwise never see the light of day. These tracks buried deep in some catalogues were given new life after being discovered by a new audience leading to further opportunities for exploitation. Though sampling was never particularly encouraged, savvy publishers understood that hip would open new revenue streams.

It seems clear to me that there is more to gain by licensing the use of samples than there is to lose. It is equally clear that that the current system is becoming unsustainable. So it seems the process clearing samples should be as fair and simple as posible. To be sure, copyright holders' rights should be respected, and writers and publishers should be compensated. However, that right to compensation should not serve to diminish the creativity of others. When the system is too inefficient, or when the prices for samples are too high, nothing gets licensed, and no new hits are created -the sampler and the samplee lose, as does listening public.

So what's the alternative?

A compulsory license, that is, a provision requiring copyright holders to extend a license to any party wishing to incorporate the existing recording in a derivative work.  Copyright law has already provided for such a compulsory license where it comes to so-called mechanical right. The compulsory mechanical license basically works like this: once a song has been recorded and released, the coyright holder must license the use of the song to anyone who wants to can record  and release it himself. In exchange, the licensee pays the song's copyright holder a statutorily-fixed royalty rate for each record sold. Most importantly, the copyright holder has no right to refuse the license, despite how repugnant the licensee may be

 When it comes to a compulsory license for samplers, three benefits immediately come to mind. First, a compulsory license to sample would inject a measure of predictability into the sample clearance process. Artists and their managers would know at the outset what portion of the budget to allocate for licensing. Drop dates could be firmer and less likely to be postponed due to licensing difficulties.

Secondly, because all of the variables affecting the sample clearance would be known at the outset, the process of securing the license would be quicker and streamlined. Accordingly, a process that can now span weeks or months could be reduced to mere days if not hours. At the same time, because it would be a much quicker process,  it would be  much less expensive transaction for the artist licensee.

Finallly, and arguably most importantly, producers would be freed up to create the music they feel,  constrained only by their imaginations.

Hip hop is dead? Maybe not,  if the compulsory license idea gains traction.  Perhaps, until then,  we shouldn't believe the hype.

 

 
Em Update PDF E-mail
Monday, 09 March 2009 00:00
The publishing company representing Eminem's music has lost in its suit against Universal Music. As previously mentioned in this blog, at issue was whether digital downloads are considered records sales, which command a relatively lower royalty rate, or licenses, which command a higher licensing fee. The decsion is important because had Universal lost, the decision would have provided powerful precedential effect, opening record labels to a potential flood gate of cases involving ambiguous or wholly absent provisions addressing digital distributions. Essentially the court recognized the changing landscape of the record business, and concluded that a digital download today is more akin to the sale of record than it is a license (for example use of a record in a film or TV show). To be sure, an important victory for a beleagured record industry that can use all the good news it can get.

 

 
Who's the Real Shady? PDF E-mail
Thursday, 26 February 2009 00:00
altThe proverbial devil is in fact often in the details. No contracts more often uphold this maxim than recording artist agreements. Many don't realize that in a typical recording agreement, a recording artist can get paid by her record label in many different ways and often at wildly varying levels. Eminem's case against Universal Music Group illustrates what can happen when the details aren‘t as clear as they could be. There are potentially millions in past and future earnings riding on this one.

In a typical recording agreement, an artist is usually paid half of the net profits earned from licensing a master recording to a third party. For example, if a third party were to use a recording in a movie, it would be granted a license to use the master, and the license fee received by the label would be split with the artist.

In contrast, an artist typically receives anywhere from 9 - 12 percent of the net profit earned by the label from the sale of a master through a third party.

So as you can imagine, how a transaction is characterized can have a dramatic effect on an artist's bottom line. It should come as no surprise then that labels are pressed to characterize digital downloads, which are fast becoming the dominant way to purchase music, as sales rather than licenses.

Slim isn't the first or only artist engaged in these kinds of battles. Most contracts today recognize the changing music landscape, and are explicit regarding the royalty for digital downloads. However, several artist contracts executed prior to the advent of the digital revolution are silent regarding such royalties, and thus subject to attack.

Assuming, for example, a label gets about 30 cents for each 99 cent iTunes download, characterizing the income earned from the download as income received from a third party license would net an artist 15 cents per download. On the other hand, characterizing the download as sale would net an artist approximately 3.6 cents assuming a 12% royalty, per download.

For the sake of argument, a label can justify the reduced royalty paid to artists given the costs associated with the sales of physical product: manufacturing, packaging, warehousing costs, shipping, and the risk of returns of unsold product. However, digital downloads eliminate the bulk of these costs to the labels, and accordingly their justification for compensating artists at a reduced rate.

Let's hope justice and reason prevail.

 
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