Erin Moskal – Edwards Creative Law

Canada Day 2024: The Perfect Day to Support Canadian Content (8th Edition)

Erin Moskal — Mon, 01 Jul 2024 13:08:38 +0000

The History of #CandianContent Posts

Canada Day 2024 – This series of blog posts was initiated in 2015 with the intention to share some Canadian content ideas on Canada Day – including films, music, TV programs, books, games, and more.

While we know every day is a good day to consume and share #CanadianContent, Canada Day is another reason to celebrate it, be proud of it, and support the creation of more of it.

New Canadian Music Releases in 2024

It’s been a breakout year for a variety of Canadian performers including Mindflip, Leila Dey, LAVI$H, Jules is Dead, J3M, and many more.

Lyndra Griffith-Harnden (entertainment lawyer) with Jules is Dead at her show in Toronto, Canada

The JUNOs which took place this past March in Halifax highlighted the many songs popular on streaming platforms to radio, around the world, from Canadian vocalists, producers and composers.

Winners included William Prince (Contemporary roots album of the year), to Aysanabee (songwriter of the year). The annual event moves locations to Vancouver, BC in 2025. Our entertainment lawyer Byron Pascoe attended the JUNOs in Halifax and enjoyed taking in all the performances and activities.

Byron Pascoe (Partner & Entertainment Lawyer) at 2024 JUNO Awards (JUNO pictured was for photo only!)

For recommendations to build your playlists, check out the recently announced Polaris Prize longlist, with albums from Canadian artists such as Beverly Glenn-Copeland and NYSSA. The short list is being announced on July 11 with the winner chosen on Sept 17.

Music Festivals Across Canada

If you love listening to your music live and outdoors, you’ll want to check out this summer’s Canadian Music Festival lineup across Canada, in which clients among other Canadians will be performing.

Toronto

Mixto Music Festival (July 13-14) is now a FREE event! Festival goers can choose to donate to non-profit organizers Uma Nota Culture to further support this music initiative. Lineup features artists like Phoenix Pagliacci, Sonic Griot, Sophia Alexandra and others.

Ottawa

From July 4-14 Ottawa Bluesfest celebrates 30 years of toe-tapping fun and features City Fidelia, Danielle Allard, Mia Kelly, Raphael Weinroth-Browne, Tyler Shaw, and many more.

Vancouver

The 47^th Annual Vancouver Folk Music Festival is heating things up from July 19-21^st in ʔəy̓alməxʷ Jericho Beach Park. Browse their lineup of incredible artists you can look forward to hearing at this event.

Yukon

Planning to be in Dawson City, YK from July 19-21^st? You’ll want to grab tickets to the Dawson City Music Festival, featuring sets by Zoon, Boy Golden, Abigail Lapell, Ombiigizi, and the list goes on.

Montreal

Come August each year, Osheaga Festival Musique et Arts never disappoints. This year, from August 2-4 at Parc Jean-Drapeau you can see shows by TALK, Cadence Weapon and more.

Nova Scotia

If you’re looking for a weekend of incredible country music and you’re in Aylesford, NS you should check out the Fox Mountain Country Music Festival from August 2-3^rd.

Prince Edwards Island

This year’s Cavendish Beach Music Festival is set to take place between July 5-7^th. It is Atlantic Canada’s largest outdoor concert and features and exciting line-up of artists on three stages (including one for emerging artists).

Calgary

Don’t have plans for August 3 and 4^th? You’ll want to head down to the Max Bell Centre Festival Grounds in Calgary, AB for the Chasing Summer Music Festival. This is the largest EDM event in Western Canada giving you the opportunity to dance and celebrate summer before it’s over for another year.

Winnipeg

If you feel like kicking back with friends to some acoustic sounds in an outdoor setting, look no further than the Winnipeg Folk Festival. From July 11-14 you can do just that (they even have camping). This year’s lineup features Kaia Kater, Madeleine Roger, Zoon and others.

New 2024 Canadian Film and Television Series

Ottawa is routinely featured in Christmas-themed movies and other made-for-TV films but most of the time it’s pretending to be other cities. But for the new British Canadian 10-part TV series Geek Girl, not only was it filmed entirely in Ottawa, two of the episodes are set in Ottawa.

The series made its international debut on Netflix May 30^th (which was celebrated by a screening at the Fairmont Château Laurier by The Ottawa Film Office in which our firm’s managing partner Mark Edwards attended). Canadians can currently watch Geek Girl on StackTV and on Netflix beginning in November. Source

Mark Edwards (Managing Partner & Entertainment Lawyer) at the Geek Girl premiere (May 2024)

Speaking of Hallmark movies filmed in Canada, Paging Mr. Darcy premiered on the Hallmark Channel February 3, 2024. Directed by Peter Wellington and produced by Shane Boucher, Caitlin Delaney, Hayden Baptiste and Gaylyn Fraiche, this period film follows Dr. Eloise Cavendish (Mallory Jansen) as she prepares to deliver the keynote speech at a Jane Austen conference.

When she meets Sam (Will Kemp) who rubs her the wrong way. They must move past their prejudices, overcome their pride to admit, like Austen’s work, they both have an absolute belief in love. Source

Super Channel recently commissioned a feature documentary call Know Her Name. This doc, which is directed by Zainab Muse, produced by Creatorland (Zainab Muse) and Pelee Entertainment (Heidi Lasi) and executive produced by Oya Media Group (Ngardy Conteh George and Münire Armstrong) delves into the legacy of filmmakers and uncovers the mysteries behind why women, especially from underrepresented communities, have been forgotten in discussions of film, erased through historical amnesia – and, how to make sure this doesn’t continue to happen. Source Source (paywall)

Fans of horror films should run to check out recent releases from Hangar 18 Media. Most recently released, Brooklyn ’45 follows five military veterans, who have been buddies since childhood, get together to support their troubled host but the metaphoric ghost of their pasts become literal… Source

If you prefer heartwarming to horror, you’ll want to watch award winning film Wilfred Buck. Written/directed and produced by Lisa Jackson whose portrait of Cree Elder Wilfred Buck moves between earth and sky, past and present, bringing to life ancient teachings of Indigenous astronomy and cosmology to tell a story that spans generations.

An adaptation of Buck’s memoir I Have Lived Four Lives, the film brings together stories from his life, including years of displacement and addiction. In a film that combines present-day scenes with cinematic re-enactments and archival footage, this intimate yet expansive documentary takes us on an inspiring journey to the space beyond, and to the spaces between us all. Source

Canadian Publishing 2024

The Royal Academy of Illustration & Design, aka R.A.I.D., is an award-winning artist collective located in Toronto’s historic Parkdale. With a primary focus on comics and graphic novels, R.A.I.D. is a creative ecosystem where artists can build their ideas, collaborate, and access varied expressive platforms.

Through its network of creatives, R.A.I.D. also operates as a scalable creative agency that offers expertise in creative concepts, idea development, and visual solutions involving illustration, design, animation, film, multi-media, and sequential art. Source: RaidWorld

For comics, make sure to check out all TCAF has to offer with their annual conference and other activities. Our entertainment lawyer Michael Duboff is on the board of directors, and also did a presentation about legal considerations in publishing at their most recent event in Toronto.

#CanadianContent – Video Games

Video games have always been a significant part of the Canadian cultural landscape, as this genre of entertainment has surpassed all others as the fastest growing industry in 2024. In fact, according to Statista, there are 19.9 million gamers, who plau an average of 7.9 hours a week and contribute to the USD$ 5.5 billion annual revenue for the industry in Canada.

In May 2024, Pavlov Shack (Vankrupt Games), a VR first-person-shooter game with classic and social gamemodes, made Beebom’s 15 Best Meta Quest 3 Games in 2024. According to the article, “Pavlov delivers intense, tactical gameplay with various classic game modes, like Valorant’s team deathmatch and search-and-destroy.”

On April 16, 2024, Ottawa based mobile game developer-publisher, Magmic announced that the company recently joined Blockchain Game Alliance. In further exemplifying its expertise in the Web3 realm, Magmic’s focus remains on remaining ahead of the curve in the ever-changing mobile game development landscape and monetization models.

In addition, Magmic secured an official partnership and license with a major sports brand to develop a tycoon-style management mobile and web videogame, leveraging Web3 technology. The ‘first-of-its-kind’ mobile sports game will deliver ‘in-gameplay’ management of one’s digital collections within Magmic’s custodial platform, allowing ownership of one’s digital collections with an anticipated reveal and launch in mid 2024. Source: Magmic

For more info on the gaming sector, be sure to check out the XP Game Summit, in which our entertainment lawyer Ian Harris recently attended.

If you’ve been waiting for a good time to start spending more of your entertainment bandwidth with content made in your Canadian neighbourhood and/or by other Canadians, it’s Canada Day. Enjoy!

What is an Entertainment Lawyer & How to Hire One: A Comprehensive Guide

Erin Moskal — Mon, 19 Jun 2023 12:00:50 +0000

Introduction: Your Path to Success with an Entertainment Lawyer

Hiring an entertainment lawyer can be a critical step in the career of an artist, producer, director, writer, developer, or entertainer in Canada. This guide will walk you through the process, answering key questions, such as “what is an entertainment lawyer”, and providing insights into the world of entertainment law.

What is an Entertainment Lawyer?

You may be wondering, what is an entertainment lawyer? How is an entertainment lawyer different from a “regular” lawyer? An entertainment lawyer restricts their practice to the needs of client in the entertainment industry. They work with clients in various sub-industries: for example, music, film, television, video games, visual arts and theater, and help navigate complex legal issues, protect intellectual property rights, and negotiate contracts.

What Does An Entertainment Lawyer Do?

Contract Negotiation and Review

One of the primary responsibilities of an entertainment lawyer is to negotiate, review, and draft contracts for their clients.

This may include negotiating contracts for record deals, film and television productions, talent management, and licensing deals.

Intellectual Property Protection

Entertainment lawyers also help clients use the Canadian legal system to protect their rights, such as copyright law and trademark law, ensuring they are properly registered and enforced.

Litigation and Dispute Resolution

In cases where disputes arise, most entertainment lawyers represent clients in court or alternative dispute resolution processes, such as mediation and arbitration.

Why Do I Need An Entertainment Lawyer?

You may be asking, “do I need an entertainment lawyer”? Hiring an entertainment lawyer is essential for anyone in the entertainment industry because of the unique legal challenges and complexities it presents.

An entertainment lawyer can help protect your rights, negotiate better deals, and ensure that you are following industry-specific laws and regulations.

An entertainment lawyer possesses the knowledge and experience necessary to navigate the legal landscape of the entertainment world, which can be invaluable for all entertainment professionals.

How Much Does an Entertainment Lawyer Charge?

Lawyer’s Hourly Rate

Most Entertainment lawyers charge an hourly rate for their services. This rate will vary based on experience, location, and the complexity of your case. It’s important to discuss the hourly rate with your prospective entertainment lawyer to ensure you have a clear understanding of the costs involved.

What are Hourly Services

Hourly services involve billing clients based on the number of hours an entertainment lawyer spends working on their case. This billing method is common for matters with an uncertain scope (such as negotiating contracts), as it allows for greater flexibility in addressing evolving legal issues.

What are Fixed Fee or Flat Fee Services?

Some entertainment lawyers may offer fixed fee services, where a specific task or project is completed for a prospective client at a predetermined, flat rate. This billing method provides clients with certainty regarding costs and can be advantageous for matters with a well-defined scope (corporate law, for example).

Estimates for Legal Services

Can I Get an Estimate for my Legal Matter?

An estimate for legal services is a rough projection of the total cost of legal representation based on the entertainment lawyer’s understanding of your situation and the anticipated scope of work.

While it can be difficult to provide precise estimates due to the unpredictable nature of legal issues, a well-informed estimate can help clients budget for legal expenses and set realistic expectations. It is essential to discuss estimated costs with your entertainment lawyer and be prepared for the possibility that actual costs may differ from the initial estimate.

Industries Served by Entertainment Lawyers

Entertainment lawyers serve a wide range of entertainment industries, including live action, animation, video games, app and software development, music, and modeling.

Each of these industries has its own set of legal challenges and considerations, which an entertainment lawyer can expertly address.

Live Action and Animation

In the live action and animation industries, an entertainment lawyer can help production companies and independent producers with matters such as intellectual property protection, licensing agreements, talent contracts, distribution deals, production agreements, and postproduction.

They can also assist with navigating regulatory requirements and obtaining necessary permits for film and television projects such as distribution rights for example.

Video Game, App, and Software Development

An entertainment lawyer plays a crucial role in the video game, app, and software development industries. They can help protect intellectual property rights, negotiate licensing agreements, and draft contracts with developers, distributors, and other parties.

They also have expertise in contract law and navigating the legal complexities of digital distribution and revenue-sharing arrangements.

Music Industry

In the music industry, an entertainment lawyer can assist with a variety of legal matters, such as negotiating and drafting record deals, publishing agreements, and performance contracts.

They can also help protect intellectual property rights, make contractual agreements, manage licensing deals, and resolve disputes involving royalties, copyright infringement, or other industry-specific issues.

Modeling Industry

Entertainment lawyers are also invaluable to the modeling industry and business, as they can help negotiating and drafting contracts with agencies, photographers, and other industry professionals. They can also assist with issues related to image rights, licensing agreements, and the protection of intellectual property.

Conclusion: Your Path to Success with an Entertainment Lawyer

Navigating the entertainment industry can be complex and challenging, but with the right legal guidance, you can protect your interests and maximize your opportunities for success.

In summary, hiring an entertainment lawyer is a wise investment for anyone in the entertainment field. They can provide expert guidance and assistance in navigating the unique legal challenges and complexities of the industry, helping you to protect your rights, secure better deals, and ensure compliance with industry-specific laws and regulations.

Now that you’re equipped with the knowledge to find the ideal entertainment lawyer for your needs, take the next step and contact our law firm by booking a complimentary discovery call. Our team of experienced professionals provides personalized, effective legal representation for clients in the entertainment industry.

For more information or to set up a minute Discovery Call with one of our entertainment lawyers please feel free to Contact Us.

Check out our popular blog posts:

Learn more about our services:

Film and Television Law
Music Law
Video Game and App Law
Publishing and Literary Law
Employment Law
Dispute Resolution and Litigation Law
Corporate Law
International Services

Esports Sponsorships – Activities, Opportunities & Considerations

Erin Moskal — Wed, 24 May 2023 20:38:45 +0000

Esports Sponsorships Introduction

Sponsorships in Esports are an integral part of the landscape, just as they are in traditional spectator sports. Esports is an exploding entertainment sector on pace to outstrip the film and television industry in terms of sheer economic activity. Sponsorship – in terms of volume and complexity – is one of the fastest-growing and effective marketing communication tools with respect to Esports.

Currently, there are more sponsorship opportunities at the team level compared to those for individual gamers/athletes. But as individual athletes grow their own fan bases, athlete-specific sponsorships opportunities are on the rise.

Whether in acting, music, or the traditional sports realm, the legal considerations for Esports sponsorships generally align with considerations for other forms of sponsorship for talent. This blog will look at a few of those overlapping considerations, as well as some of the considerations that are specific to Esports sponsorships.

General Considerations in Esports Sponsorships

In any sponsorship deal, the sponsored activity is one of the primary items to be clearly identified. For the sponsor, the scope of the activity and the obligations of the sponsored athlete (or musical artist, influencer, etc.) tied to the activity should be as broad as possible, whereas it is to the sponsored athlete’s benefit to limit the ambit of that activity as much as possible.

The activity could include participation at an in-person or online Esports event, wearing sponsored clothing, or using a sponsored product.

Intellectual Property and Rights in Esports

The heart of any sponsorship agreement is the rights of association and all related rights that are granted to the sponsor. However, from the sponsored athlete’s perspective, it is important to limit those rights to ones that are necessary to carry out the sponsorship.

A sponsored athlete must deliver marketing and promotional value to the sponsor by its association with the sponsored athlete but wants to reserve any rights to itself not necessary to carry out the sponsorship. This helps the sponsored athlete maintain control of their brand and preserves potential future opportunities based on the rights it didn’t grant in a particular sponsorship.

One example is a sponsored athlete agreeing to appear at sponsored event and to allow promotion of that fact, but not granting the rights to film/record and make content for social media of their appearance at the event (unless of course, the sponsor is willing to pay more for that right).

Typically, a brand will want to be the “exclusive sponsor” associated with any sponsored athlete. But a sponsored athlete will generally want to try to limit the scope of that exclusivity, whether based on the territory that the exclusivity applies to (e.g. “Canada only”), or product category (e.g. “the exclusive energy drink sponsor”) and most definitely by the time period or term of the exclusivity.

The sponsored athlete will also need to grant the necessary sponsorship and other marketing and media rights for the sponsor to engage in all promotional activities contemplated in the agreement.

What Forms of Payment are Available?

Compensation generally comes in the form of a fee to a sponsored athlete, or the benefit derived by a sponsored athlete from a sponsorship arrangement. Fees are the most traditional form, but another common way to provide a benefit to the sponsored athlete is “in kind” consideration.

For example, a brand/sponsor may only provide free product (e.g. energy drink supplies) to an individual in exchange for some form of marketing or promotion by the sponsored athlete.

Often, there will be some combination of fee and “in kind” consideration provided for in the sponsorship agreement.

Esports Sponsors – Advertising and Promotion

In all sponsorship agreements, it is important to determine what advertising and promotional obligations a sponsored athlete takes on.

What are their deliverables?
Is it to use their social media platforms to amplify the brand the sponsor?
How many times are they required to post to social, for example, during the duration of the agreement?
Three times a week? Monthly?
What messages are they going to put out on social?
What level of approval does the sponsor have over the message being delivered through the channels?

Generally, as with other social media influencers like Esports athletes, the question of authenticity often comes up.

Is the product or brand sponsoring anything the athlete would naturally be associated with or use?
Is the product or brand off-base or disconnected from the athlete?
If so, does the sponsorship ultimately do damage to the brand of both the athlete and the sponsor?

Specific Considerations for Esports Sponsorship Deals

Like all sponsorships in entertainment or in traditional sports, the timing of key events in a season will dictate how much urgency, and therefore, leverage an athlete has in negotiating a sponsorship deal.

For that reason, it is important that Esports advisors and lawyers know the key dates in an athlete’s season, as well as upcoming tournaments, and use these dates and potential results to parlay them into a better deal for the athlete.

What are “Break Clauses”?

All sponsorship agreements can potentially contain a “break” clause which allows one of the parties to terminate the agreement early in specific situations.

A specific application of a break clause to an Esports sponsorship may provide a right to terminate a sponsorship in favour of the sponsored athlete if the athlete misses an event or fails to reach a particular threshold (e.g., not making it through to the next round of a gaming tournament).

More athlete-friendly break clauses may provide for an athlete to terminate a sponsorship without further obligation where a sponsor loses its official status with a particular league, or it may instead provide that a sponsor loses their renewal rights under the agreement.

Esports-Specific Payment Considerations

Again, the level and timing of payments are important in all sponsorship arrangements. How much of the sponsorship fee is paid upfront versus paid over specified milestones? Additionally, how much of the compensation is contingent on the sponsored athlete reaching certain thresholds?

Events can often act as triggers for payments to sponsored athletes, which acts as a hold back on sponsorship fees until closer to the time that a sponsored athlete is scheduled to receive the benefits of the sponsorship arrangement.

This allows for payments and cashflow to occur at a time closer to when the promotional benefits provided by athletes are realized when based on events (e.g. the League of Legends World Championships), rather than dates in the future. In Esports, payments schedules and thresholds are often determined based on the last fixture in a tournament, which provides incentive for an athlete to continue providing benefits to the sponsor until the tournament is over, regardless of their involvement in the last fixture.

For help with your esports sponsorship agreement, whether as a sponsor, or as someone receiving a sponsorship opportunity, or sponsorship generally, please get in contact with us. We are happy to help!

For more information or to set up a minute Discovery Call with one of our entertainment lawyers please feel free to Contact Us.

Check out our popular blog posts:

Learn more about our services:

Film and Television Law
Music Law
Video Game and App Law
Publishing and Literary Law
Employment Law
Dispute Resolution and Litigation Law
Corporate Law
International Services

What Music Royalty Fees are Generated from Songs and How Do I Get Paid?

Erin Moskal — Tue, 09 May 2023 16:12:49 +0000

Music Royalty Fees Explained – The Recording

This blog takes the perspective of a recording artist who either releases music independently or with the assistance of a record label and/or a music publisher.

First off, if you as a recording artist are having your music produced by someone else, you need to ensure you own the recording by way of an agreement in writing with the producer. On its own, simply paying a producer does not mean you own the sound recording copyright. Other names for a recording are sound recording, master recording, and master.

There are different types of record labels ranging from major labels to major indies to independent labels. Record labels act differently from each other but there are some generalizations that can be made about what role a record label takes in the distribution and exploitation of recordings you make and the basis on which they pay you.

What are the Types of Music Recording Royalties?

Form of Royalty Payment	Details	How are Recording Royalties Paid?
Form of Royalty Payment	Details	Artist Signed to a Record Label	Independent Recording Artist
Digital distribution	Streaming platforms, digital downloads	The label collects all this money, and pays the artist a share or royalty based on their written agreement	Artist signs up with a distributor (DistroKid, CD Baby, etc.) who pays the artist streaming royalties based on streams, downloads, etc.
Sound recording owner share of neighbouring rights music royalties	Half of the “SoundExchange” music royalties – mostly based on plays from satellite radio stations	The record label collects all this money, and either shares it with the artist or not	Registering with CONNECT or Re:Sound in Canada and/or SoundExchange in the US
Master use license for music placements	The right to have the recording be used in a moving picture – half of the overall fee paid to have a song be in a TV show, film, ad, video game, radio airplay etc.	The label collects all this money, and pays the artist a percentage (of the music royalties) based on their written agreement	Direct agreements with companies licensing music to appear in audio visual content. Sometimes an artist will have a sync agent who seeks placements for the artist. In those cases, sync royalties may flow directly to the artist from the companies licensing music or from the agent after the agent takes an agreed-upon commission, and possibly fees / expenses too.
Physical distribution	Vinyl	The label generally sells your physical product and pays you a percentage based on their written agreement. For offstage sales and limited sales through your website, you buy the product from your label, and get to sell it at whatever price you want and keep the funds you received from sales without needing to pay the label anything else	You make vinyl yourself and pay all costs to do so and sell on the road or online and retain all sales. Hopefully a profit is made.

Music Royalty Fees – Digital Performance Royalties

Form of Royalty Payments	Details	How Are Digital Performance Royalties Paid?
Share of neighbouring rights music royalties for the featured and on-featured artists	The other half of the “SoundExchange” music royalties – mostly based on plays from satellite radio	Sign up with an organization that collects it such as MROC, ACTRA RACS, Re:Sound, or SoundExchange

More info: https://edwardslaw.ca/blog/neighbouring-rights/

What are the Types of Music Composition Royalties?

Each recording has an underlying composition with music and lyrics. Every recording has one composition, but each composition may have many recordings – performed by the recording artist and others who cover the artist.

Generally, an artist will only have one main recording for each composition but sometimes they have multiple versions – such as a regular version and an acoustic version, or a regular version and a version with a special featured artist.

The first item is what percentage you get as a writer – you need to establish your splits with other creative collaborators.

There are different types of publishers in the music industry from a co-publisher who would co-own the compositions with you, to a publishing administrator who would not have any ownership but would have rights to collect your publishing music royalties. Publishers act differently from each other. The distinction between having a publisher or not includes some generalizations about how publishers operate.

Form of Royalty Payments	Details	How Are Publishing Royalties Paid?
Form of Royalty Payments	Details	Writer Signed to a Music Publisher	Independent Self-Published Writer
Public performance royalties	The right to publicly perform a composition. Performance royalties are triggered when music is played on terrestrial radio, TV, and when publicly performed (in concert by the writer or anyone singing their music).	Writer’s Share of the performance royalties (50% of your entitlement as a writer) – Collected and kept by writer Publisher’s Share of the performance royalties (50% of your entitlement as a writer) – The publisher (or publishing administrator) is responsible for collecting royalties – they pay the writer based on their written agreement.	Paid by SOCAN to the writer
Mechanical royalties	The right to digitally or physically reproduce the composition. This occurs when music is streamed, downloaded, and used on platforms like TikTok, or when “pressed” into vinyl records and/or CDs.	Mechanical royalties paid by publishing administrator are received from organizations such as CMMRA in Canada and the MLC in the US	The writer can sign up with organizations such as CMMRA in Canada and the MLC in the US to get paid mechanical royalties
Synchronization license for music placements	The right to have the composition be used in a moving picture – half of the overall fee paid to have a song be in a TV show, film, ad, video game, etc.	A publishing company would collect the royalties generated and pay to the writer their share based on their publishing deal. A publishing administrator would generally not collect this money.	Direct agreements with companies licensing music to appear in audio visual content. Sometimes a writer will have a sync agent who seeks placements for the writer. In those cases, the royalties generated may flow directly to the writer from the companies licensing music or from the agent after taking an agreed-upon commission, and possibly fees / expenses too.

Updated to May 9, 2023

For more information or to set up a minute Discovery Call with one of our entertainment lawyers please feel free to Contact Us.

Check out our popular blog posts:

Film and Television Law
Music Law
Video Game and App Law
Publishing and Literary Law
Employment Law
Dispute Resolution and Litigation Law
Corporate Law
International Services

When Writing Kills: Red Flags in Publishing Agreements – Part 2

Erin Moskal — Fri, 21 Apr 2023 13:00:21 +0000

Publishing Contracts and Publishing Rights – Introduction

In Part 1 of this blog series we discussed how book publishing contracts vary in quality and fairness. We also addressed what you, as a writer, should watch out for when a publishing contract lands in your inbox. Specifically, we discussed the publishing rights granted, scope of licence, copyright owners, publisher’s obligations, and monetary advances.

In Part 2 we continue our examination of publishing contracts, identifying further key sections such as publishing rights, royalties, termination, and potential red flags in the publishing industry.

(Note: the degree of risk posed by any red flags in a particular agreement must be determined on a case-by-case basis. If you have questions or concerns about a publishing contract, we recommend you speak to an entertainment lawyer.)

What are Publishing Royalties?

Publishing Royalties are a large part, if not all, of a writer’s prospective earnings. The royalties clause provides what percentage of revenue a writer is entitled to receive (ie: the writer’s share).

Publishing Royalties are typically based on sales and paid as a percentage of the retail or list price, less deductions for returns. However, some agreements allow the publisher’s share to be greater if they make deductions for things such as taxes, import duties, marketing, agency fees and distribution costs.

A writer typically accepts a relatively low percentage of the retail price (5%-15% for print copies) on the basis that the publisher or publishing company will bear the costs of marketing and distributing the book. If your publishing contract allows the publisher to make substantial deductions from revenues, low royalty payment rates don’t make sense.

What does “Reversion of Rights” mean?

Typically, a publishing contract will provide that publishing rights will revert to the author if the publisher fails to meet certain thresholds in the agreement – usually with respect to publishing timelines or keeping the work in print.

However, some publishing contracts do not have a reversion rights clause. Therefore, before you sign a publishing deal, make sure you know what events will get you your right to publish back.

Can a Writer Terminate a Publishing Agreement?

While a writer’s ability to outright terminate a publishing agreement is rare, there should be certain instances where a writer is entitled to terminate (and consequently have their publishing rights revert to them).

Often, publishers have more extensive termination rights, such as if the writer fails to adhere to a delivery schedule. On the other hand, a writer may be able to terminate the publishing contract if the publisher does not publish the work for a minimum amount of time or if it decides to stop publishing the work. Knowing your termination rights is vital.

What does “Monies Held in Reserve” mean?

“Monies held in reserve” refers to a portion of royalties the publisher withholds from the writer. Th

ese royalties are withheld to protect the publisher in the event they are required to pay refunds on returns.

These “monies held in reserve” should be a set percentage and not vaguely defined as a “reasonable” amount. Additionally, the agreement should provide details about when the royalties will eventually be paid to the writer. The publisher should not have the ability to withhold said royalties in perpetuity.

What are Vanity Publishers and Predatory Publishers?

This item doesn’t relate to the clauses of a publishing contract, but to types of publishers to be wary of.

Well established publishers tend to be picky and reject most original work submitted to them. Vanity publishers, on the other hand,

tend to accept the majority of works they are offered. This is because writers pay vanity publishers to have their books published. One of the key considerations when dealing with vanity publishers is the extent of the publisher’s obligations to publish the work. If a writer agrees to pay a publisher, they should be confident there is substantial value in the publishing service.

Predatory publishers are on the rise, particularly in the world of academic publishing. These publishers tend to market themselves to academic writers. However, the peer review elements these publishers tout are sometimes illegitimate or misleading. Predatory publishers often require extremely restrictive terms, many of which are identified as red flags in this publishing blog series.

Publishing Contracts and Publishing Rights – Conclusion

It may be tempting to sign a book publishing contract before properly reviewing it. However, you should read the contract carefully, understand its terms, and be confident that it is a deal worth entering. The last thing you want is to have your work tied up in an unreasonable and onerous agreement that you can’t get out of.

For more information, we recommend you take a look at another Edwards Creative Law blog on co-publishing: Collaborating with Artists and Other Writers.

For more information or to set up a minute Discovery Call with one of our entertainment lawyers please feel free to Contact Us.

Check out our popular blog posts:

Learn more about our services:

Film and Television Law
Music Law
Video Game and App Law
Publishing and Literary Law
Employment Law
Dispute Resolution and Litigation Law
Corporate Law
International Services

Beatmaker Contracts – An Artist Wants My Beat – What Now?

Erin Moskal — Fri, 28 Oct 2022 19:41:54 +0000

Can we help?

Our entertainment law firm often receives inquiries from producers and beatmakers who have been contacted by an artist requesting to use their beat. We can help – so long as there is no conflict of interest. As long as we don’t already represent the artist, for example to help the artist clear their beats, we are usually able to assist.

What do we actually do?

We work with producers who are asked by artists to use their beats by helping them to understand and negotiate the deal terms of Beatmaker Contracts/Agreements. If the deal terms are acceptable to both parties, we help the producer to review and provide feedback on the proposed contract. We also help the producer navigate the process until the contract is signed, and then help as requested to ensure guaranteed fees are paid, royalties are flowing, and credit is provided.

Beatmaker Contracts – What are the common deal points?

Up-Front Fee

We suggest the producer require an up-front payment for permission to use their beat. This up-front payment may come in the form of an advance (ideal for the artist) or as a non-recoupable payment (ideal for the producer). Often it falls somewhere in between, such as 50% of the payment being considered an advance (fairly reasonable and standard, however it depends on the situation).

Composition Split

A general starting point is that the composition split will be 50% for the person or people who wrote the lyrics, and 50% for the beat producer; however, there are usually other factors to consider that may affect the split, especially if there are samples or other producers, remixers, etc.

Recording Royalties

We suggest the producer ask to receive a percentage of the royalties generated from the new sound recording (the master recording) featuring the artist. There are various revenue formulas to determine that entitlement, including that the producer be offered (1) a percentage of artist’s net profit, (2) a percentage of the overall gross revenue or (3) a PPD (purchase price to dealer) percentage of royalties. PPD is more typical when there is a major record label involved. Each formula is different, and the more information we know about the situation the better we can negotiate for you to ensure the entitlements are reasonable.

Payment Schedule

As a producer, ask if you are only paid once other costs are reimbursed. It’s fairly common, but the question is whether it’s reasonable in the circumstances. The concept of “record one” means that your entitlements will be calculated from the time the music is released, but that you are not actually paid until other expenses are reimbursed to the relevant party.

Payor

Who is actually paying you? If the artist uses DistroKid to distribute the recording, it might be reasonable to ask that you be paid directly by DistroKid using DistroKid’s splits function, which allows an artist to automatically split payments to their collaborators including producers and beatmakers (or their manager, mom or mentor). If the artist is signed with a record label, ideally the label is paying you by way of what is referred to as a letter of direction (a.k.a. an LOD).

Digital Performance Royalties

Are you entitled to a share of the featured artist share of these royalties paid by SoundExchange, ACTRA RACS, MROC, etc.?

Credit

What credit are you getting? Where is that credit being included? Will it appear on Spotify, Apple Music, and other important platforms? Getting a credit with a significant artist can open many doors. If you are not credited for your work, it’s harder to prove you actually made the beat.

Beatmaker Contracts – Additional Considerations

The points above are only some examples of the most relevant deal terms – but they are a good start. Not all the deal terms you want are going to be included in the deal terms you are offered.

When you receive an offer from an artist (especially if they are a “bigger” artist, for example one with a strong record label behind them), a general suggestion is to not make that same beat available to anyone else – either to buy or lease. If, for example, you have the beat up on YouTube, but also on BeatStars for people to lease or purchase, we generally suggest not making it available for sale or lease to anyone else while the opportunity with the artist is being negotiated.

Also, important to note is that if the beat includes a sample, or it has been leased to someone else, that you are up-front with the artist about that fact, so you can deal with it together, proactively, and avoid anyone being surprised by those facts later on. Also relevant are loops – and how you acquired them.

Overall, we help beatmakers / producers to ensure that the deal they are being offered is reasonable in the circumstances and within the scope of industry standards. Just because something is standard, does not mean that it is reasonable in the circumstances. Also, just because a producer is told that what they are being offered is standard does not mean that it is non-negotiable.

We look forward to helping you navigate this exciting process. It might be a new process to you, but it is not to us.

–

Updated to October 28, 2022

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Is Classical Music Copyrighted?

Erin Moskal — Fri, 21 Oct 2022 17:45:26 +0000

Is classical music copyrighted?

Copyright protection and classical music is a widely searched topic. You may be wondering what copyright protection does, well, it covers original literary, dramatic, musical, and artistic works of authorship. This is during the lifetime of the author, the remainder of the calendar year in which the author dies, plus 70 additional years (the Canadian copyright lifespan recently increased from 50 to 70 years in June of 2022). Once this term expires, the work becomes public domain.

The public domain is composed of millions of creative music works – including classical music. This includes the masterpieces of classical composers like Mozart, Wagner, Beethoven, and Vivaldi. Because they are public domain works, these classical music pieces may be freely copied, distributed, adapted, or performed in public without permission or paying a fee – royalty free.

However, if Beethoven’s 5th Symphony is in the public domain, how are many publishing companies claiming copyright ownership in these classical music works? After all, Beethoven has been dead for more than 70 years! Shouldn’t they be royalty free music?

To start, don’t assume a classical music piece is in the public domain. To make proper use of classical music in the public domain, it is important to understand how copyright law works in Canada and the differences between musical works and sound recordings.

Copyright Laws in Canada

Canada’s Copyright Act defines a musical work as “any work of music or musical composition, with or without words, and includes compilations thereof.” Classical compositions are considered musical works and are, therefore, protected by copyright law.

Intellectual Property protection (copyright law) begins once the composer creates and fixes the composition (piece of music) in a tangible form, which usually means writing the musical notation in the form of sheet music. The protection expires 70 years after the composer’s death. At that point, it becomes part of the public domain. Therefore, the musical compositions of Mozart, Wagner, Beethoven, and Vivaldi are free to copy, distribute, adapt, or perform in public.

Copyright Protection & Classical Music – Past, Present, Future

Many years ago, in the late 19th century, before the advent of audio recording devices, copyright protection for musical compositions was all that was necessary to protect a composer’s intellectual property rights. However, with the arrival of audio recording devices, a second form of music copyright, commonly known as “sound recording rights,” was created to protect recorded performances.

In Canada, sound recordings are defined by the Copyright Act as “a recording, fixed in any material form, consisting of sounds, whether or not of a performance of a work, but excludes any soundtrack of a cinematographic work where it accompanies the cinematographic work.” Unlike a music copyright, copyright in the sound recording protects the way a piece of music is performed and recorded. Also, the term of protection is shorter, lasting for 70 years after the first publication of the sound recording.

The Duality of Copyright Protection

Therefore, two sets of copyright protection exist in every sound recording — the right in the composition, and the right in the sound recording. Practically, when an artist records themselves playing Beethoven’s 5th Symphony, the creator owns the copyright in the recording and the arrangement. The same happens when a record company records a recording of the song and includes it as a track on an album. The record company will own the copyright in their own version of the recording and arrangement.

Copyright Intricacies

Each sound recording made of Beethoven’s 5th Symphony, whether made at home by an artist/composer or in studio by a record company, will be protected by copyright law. Regardless of the number of versions of a sound recording, there will only be one copyright in the underlying composition. So, when you are listening to Beethoven’s 5th Symphony on the radio, it’s not just the song you are listening to, it’s also the performer’s arrangement of that piece, which is also protected by copyright, and therefore cannot be used without permission from the sound recording’s creator(s).

What About Copyright in Films

In a related content, when a film producer wants to use specific songs in a film project, they will require synchronization rights from the song’s writer(s) and master use recording rights to use a specific pre-existing recording. If the master use rights are too expensive, especially if the recording features the song’s writer, the film producer might consider re-recording their own version of the song to avoid paying an expensive master use license. However, the additional costs to re-record a song might cancel out the cost savings of avoiding paying the master use fees.

Conclusion

To conclude, do not assume that a piece of music is in the public domain simply because the composer of the underlying musical work died more than 70 years ago. Even when a composition is in the public domain, the sound recording is still protected, and its copyright owner has exclusive rights to that arrangement for 70 years after the first publication of the sound recording. However, copyright law does not prevent you from performing, copying, distributing and recording your own arrangement of Beethoven’s 5th Symphony or any other musical composition found in the public domain.

Updated to October 21, 2022

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Influencer Contracts: Top 10 Legal Considerations

Erin Moskal — Fri, 07 Oct 2022 20:30:17 +0000

Social Media Influencers

Social media influencers are killing it these days. The highest paid influencers can earn up to one million dollars for a single post! If people aspire to earn a living as an influencer (or perhaps just make some cash on the side), it may be exciting to receive an offer from a company who wants them to promote their products – typically in the form of a contract known as an influencer agreement. However, there are some things they should keep in mind before signing on the dotted line.

This blog discusses 10 common legal considerations that arise in an influencer contract. We got in touch with the founder of MODERNSPEAK Kristyn Snell who shared some valuable tips based on her experience running an influencer management agency. The blog post does not discuss what an influencer’s followers might think about their vegan cooking brand if they decide to promote a new line of beef hotdogs.

Preliminary Considerations

First, a couple preliminaries about influencer contracts: this contract may or may not be with the sponsor directly. Influencer contracts are often signed with marketing companies hired by the sponsor to promote the sponsor’s brand, and they would in turn engage an influencer.

Components of an Influencer Contract

If an influencer is presented with a contract for an influencer marketing campaign, there will generally be two parts: the terms and conditions and a statement of work (“SOW”). The terms and conditions usually contain the sponsor’s standard contractual terms and may or may not be negotiable. The SOW describes the specific nature of the engagement as an influencer promoting a sponsor.

Top Considerations Before Signing

Now, on to the main event. Below are ten common considerations to keep in mind when deciding whether to agree to an influencer partnership agreement:

1. Exclusivity

If there’s an exclusivity requirement, there should be as much clarity as possible about the specific companies and/or brands that an influencer cannot promote, and for how long. Exclusivity requirements are generally considered by courts to be acceptable kinds of restrictions in a talent or influencer contracts, so long as the restrictions are reasonable, and the influencer is being paid enough.

Kristyn Snell the founder of MODERNSPEAK influencer management agency says:
We can’t think about exclusivity without also considering usage. Usage refers to how a brand will be using the influencer content after it’s created. From organic social sharing to paid advertising and everything in between, one thing to consider when it comes to these two common clauses is the length of both terms. If an exclusivity term is 3 months, but a usage term is 6 months that could be implied exclusivity based on how the brand will be using the influencer’s likeness to promote the product for that extra term.

2. Compensation

Speaking of being paid enough, how much will the influencer be paid? What’s the payment schedule? There should be clarity about what the influencer needs to do to get paid. If the influencer collects HST or another form of tax, they must be sure to ensure their fee is plus applicable taxes. They wouldn’t want to have to be in a situation where the fee includes any taxes owing.

Kristyn’s experience has taught her an important lesson when it comes to compensation and conversion fees. If a brand agrees to pay the equivalent of an influencer’s home currency fee in their currency, the influencer must be sure to protect themselves from potential fluctuation on that currency conversion, so they aren’t losing out on money when it comes time to get paid. And they should consider fighting for NET 30 payment as well as a portion of their fees upon signing of the contract.

3. Likeness

An influencer’s image is their livelihood. While the sponsor should be given the right to use the influencer’s image for the campaign, they should make sure they are allowed to do all that they want to with the influencer’s image, so long as the influencer is not offside of the limited set of exclusivity obligations. Also, the influencer would want to have approval over which images and likenesses of themselves the sponsor is allowed to use for the campaign.

4. Termination

Under what conditions may an influencer be terminated? Sponsors often require the right to terminate “without cause” or for “convenience,” meaning the influencer may not have done anything wrong. In that case, how much will the influencer be paid for what they’ve done so far? What about for their troubles generally? Maybe it’s not enough.

Also, sponsors are more sensitive than ever to what might be mined from the past 15 years of an influencer’s social media posts. In addition to doing their diligence on an influencer, a sponsor will often include a morals clause in an influencer contract that allows for their termination and/or damages should they be convicted of a crime, or if some other unsavoury information comes to light.

Kristyn Snell: Consider also including a reverse morals clause where an influencer may terminate the relationship with the brand if they are also found to be in moral conflict and the influencer, being tied to the brand, could be damaging to their reputation. It’s also a good idea to add a Kill Fee to an influencer contracts so if a brand does decide to terminate the contract before all the deliverables are completed an influencer can be paid for the work that has been done.

5. Sponsored Posts

What are the requirements about how an influencer identifies their relationship with their sponsor? They must be sure to be on the same page.

6. Approvals

The influencer must sure there is clarity about the approval process, so that they are not later told the agreement is terminated because they didn’t get approval for a video they’d already posted to Instagram or another social media platform.

7. Deadlines

If an influencer will be offside of their obligation for missing deadlines, are the deadlines clearly set in the agreement? Also, are they reasonable in the circumstances? How should deadlines automatically extend if an influencer is waiting for approvals? When it comes to setting the rates for an influencer marketing campaign, consider adding in a rush fee for any requests that are less than two weeks from contract to live dates.

8. The “Entire Agreement” Clause

If amendments to the contract need to be in writing, an influencer shouldn’t rely on a phone call letting them know the deadline to deliver was extended. The influencer must ensure the agreement clarifies how changes can be made, and they must ensure they follow the steps when there are changes to the arrangement.

9. Content Ownership

If there’s any reason why the sponsor shouldn’t own all the influencer’s content being made for the campaign, ensure the appropriate arrangement for all intellectual property is clearly outlined in the influencer contract. Regardless of copyright ownership, for how long can the sponsor use the content?

10. Scope of Deliverables

The influencer should ensure that the SOW clearly defines what they need to deliver. They will want to avoid “scope creep,” which happens when there are open-ended obligations to deliver content, and the influencer is continuously asked to deliver more (well beyond what they expected) for no additional compensation. Clarity between the influencer and the sponsor regarding their influencer marketing campaigns obligations will help lead to a healthier relationship, whether an influencer is promoting a skin cream or anything else under the sun.

Working with an Entertainment Lawyer

If you need help to review your influencer contract, or draft an influencer contract template, please get in touch. We work with influencers to ensure their rights are protected and they clearly understand their obligations. We also work with managers and agents to help review the influencer contracts their clients are offered, and answer any related legal questions.

About Our Co-blogger

With over ten year’s experience in public relations and influencer marketing, Kristyn founded MODERNSPEAK, a global creator management agency in 2019. Kristyn is most creative when surrounded by people, collaborating, mentoring and bridging opportunities between creatives, consumer brands and tourism destinations. When her dream job didn’t exist, she created it.

https://www.modernspeak.co/
https://www.instagram.com/modernspeak
https://www.linkedin.com/company/modernspeak-inc

Updated to September 20, 2022

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Recent Judicial Decision: A Tale of Two Music Royalty Streams (ESA v SOCAN)

Erin Moskal — Fri, 09 Sep 2022 20:38:49 +0000

Decision re Music Royalties

A potential new source of music revenue for artists has recently been eliminated. In Society of Composers, Authors and Music Publishers of Canada v Entertainment Software Association et al. 2022 SCC 30 (“ESA v SOCAN”), the Supreme Court clarified that making a work available online does not result in a separate royalty when that work is actually streamed or downloaded.

In reaching its conclusion, the Supreme Court disagreed with the Copyright Board of Canada (the “Board”), whose earlier decision found that the act of making a work available is a separately protected activity that should result in a separate royalty.

Appeal in ESA v SOCAN

ESA v SOCAN is the latest decision in a series of cases between the Society of Composers, Authors and Music Publishers of Canada (“SOCAN”) and Entertainment Software Association (“ESA”), regarding the interpretation and application of copyright law in Canada.

Copyright Act & Copyright Treaty

At issue in this latest appeal was the interpretation of s. 2.4(1.1) of the Copyright Act (Canada) (the “Act”), which was added in 2012 by way of the Copyright Modernization Act. In enacting s. 2.4(1.1), Parliament’s intention was to implement the rights and protections of the WIPO Copyright Treaty (the “Treaty”), the purpose of which is to adapt international copyright rules to new and emerging technologies.

WIPO Copyright Treaty

The Treaty, to which Canada is a signatory, requires that member countries provide authors with the exclusive right to make their works available to the public in such a way that a person may access the work from a place and at a time individually chosen by them. Section 2.4(1.1) of the Act imports this so-called “making available right” (or “MAR”) by amending s .3(1)(f) of the Act to provide that communicating a work to the public via telecommunication includes making it available in a way that allows a person to access it from a place and at a time chosen by them.

Multiple Royalties Streams

The Board, in certifying a separate tariff under s. 2.4(1.1), stated that MAR provisions create two royalty streams when a work is available online: (1) when a work is first made available online, and (2) when the work is actually streamed or downloaded. On appeal, the Federal Court of Appeal quashed the decision of the Board, concluding that Parliament did not intend to create a new, separately compensable “making available right,” and that s. 2.4(1.1) does not subject downloads and streams to two royalties. SOCAN appealed to the Supreme Court.

In dismissing the appeal, the Supreme Court upheld the decision of the Federal Court of Appeal. In its reasons, the Supreme Court considered the balance of rights between authors and users, writing that the Act does not exist solely for the benefit of authors, and that there must be a balance between securing “just rewards for authors while facilitating public access to works.”

Interpretation of the Act

In addition, the Supreme Court found that the Board’s interpretation undermines the purpose of the Act because it violates the principle of technological neutrality; that is, the Act should not be interpreted so as to favour or discriminate one form of technology over another. By requiring users to pay two royalties to access works online, the Board did not treat old and new technologies the same: an artist does not receive a separate MAR royalty when a work is reproduced in a durable form, such as a CD. What matters is what the user receives, not how the user receives it.

The Supreme Court found that Canada’s commitments under the Treaty are fulfilled through the combination of performance, reproduction and authorization rights, set out in s. 3(1) of the Act.

Final Decision and Implications

As summarized by the Supreme Court, the main takeaway for the music industry is that the current legislative scheme adequately protects artists’ rights and protections under the Treaty: “If a work is streamed or made available for on-demand streaming, the author’s performance right is engaged. If a work is downloaded, the author’s reproduction right is engaged. If a work is made available for downloading, the author’s right to authorize reproductions is engaged. There are no gaps in protection.”

The Supreme Court’s complete decision can be found here.

Updated to September 9, 2022

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When Writing Kills: Red Flags in Publishing Agreements – Part 1

Erin Moskal — Fri, 12 Aug 2022 12:30:58 +0000

The Publishing Agreement Offer

Another late night of writing. Your alarm goes off, you stumble out of bed to grab a cup of coffee, then sit down at your computer. Another day of editing your manuscript… Hold on! You have a new email, and it’s from a publishing company. It looks like an offer! All those long hours working on your novel, editing and re-editing it, getting feedback from family and friends, shipping it around to publishers, and finally it looks like your immense efforts have paid off. Someone actually wants to publish you!

All that’s left now is to quickly scroll to the bottom of the publishing agreement that was attached to the email, sign it, and you’re off to the literary races… But wait! Don’t sign that agreement just yet!

Pitfalls in Publishing Agreements

What you need to know, unfortunately, is that not every agreement you receive is going to be beneficial and worth your commitment, time, and resources to enter. In certain cases, terms can be heavily one-sided in favour of the publisher and so detrimental to the writer.

In cases such as these, we wouldn’t advise the writer enter the publishing agreement unless the terms are amended. This blog will identify certain red flags that a writer may find in publishing agreements.

(Note: The seriousness of red flag provisions can only be determined on a case-by-case basis. If you have questions or doubts about the terms of an agreement you have received, we recommend you reach out to an entertainment lawyer for advice.)

The Grant of Rights

This is one of the most important clauses in a publishing contract. In order for the publisher to do its job they need the rights to publish and market the property. However, the extent of the rights they are asking for may be more extensive than what they need.

Is the grant limited to a single work, or does it extend to sequels, prequels, spin-offs, and adaptations (film, tv series, stage productions, etc.)? What is the term of the grant of rights? Is it a set number of years or is it the duration of the copyright (your life plus 70 years)? What is the territory in which the rights are granted?

Always try to limit the publisher’s rights to those that are necessary to enable the publisher to do what they are promising to do.

The Publication Property

What work(s) does the publishing agreement cover? Is it a single novel, a trilogy, a graphic novel, an ongoing comic book series? This must be clearly identified in the agreement. As mentioned above, does the agreement cover speculative works – e. g., sequels, prequels or spin-offs that have yet to be written?

If so, try to limit this right to a first right of negotiation, which will give the publisher the ability to negotiate for the rights to these other works but does not automatically grant them. A right of first negotiation is more flexible than a first right of refusal, which is often found in publishing agreements. A right of first refusal gives bargaining power to the publisher. If the publisher determines it wants to sign on for these future works, you’re obligated to do so.

Copyright Owner

Publishing Contract Obligations

The specifics of how a publishing company publishes works varies greatly from publisher to publisher and from work to work. Listing the publisher’s specific obligations in the publishing agreement is a necessity and, if the publisher includes the list, it is a great sign that the publisher is writer-friendly.

You will have tangible benchmarks against which to evaluate the publisher’s efforts. The absence of a list of the publisher’s obligations means that the publisher is free to publish the work(s) in any manner it sees fit.

Publishing Advances

An advance is another term that may indicate a publisher is more writer-friendly. Most advances are recoupable, which means the advance will be retained by the publisher from monies that would otherwise be paid to the writer (e.g., from royalties earned).

One of the benefits to a writer of an advance (in addition to putting money in your pocket on signing the publishing agreement) is that it creates an incentive for the publisher to work hard to publish and sell the work, to recoup its advance. If there is no advance, the publisher has little or nothing to lose if the work doesn’t sell.

Part 2

Part 2 of this series on red flags in publishing agreement looks at reversion of rights, termination clauses, monies held in reserve, and vanity publishers.

Conclusion

Receiving an offer of a publishing agreement is exciting, but before you sign it and pop the champagne, make sure that you have read the agreement carefully, understand its terms, and are confident that it is a deal worth entering into. The last thing you want is to have your work tied up in an unreasonable and onerous agreement that you can’t get out of.

For more information, we recommend you take a look at another Edwards Creative Law blog on publishing: Collaborating with Artists and Other Writers

–

Updated to August 8, 2022

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Beatmaker Contracts – An Artist Wants My Beat – What Now?

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Beatmaker Contracts – What are the common deal points?

Up-Front Fee

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