Music – Edwards Creative Law

Music Performance Agreements – Legally, What You Need to Know

Michael Duboff — Mon, 26 Feb 2024 18:17:47 +0000

Performing music live is a prime objective of many artists. The performance may be a one-off show at a local bar, part of a tour, or a corporate gig. The variabilities of artists’ performances and the related business considerations are vast. Whether you are the artist, represent the venue, or are the event operator (in which case you might also be the venue representative) challenges may arise if the terms of the performance are not clear and confirmed by all parties. For this reason, like all other business engagements, we encourage written performance agreements to be entered into between artist and party engaging them – either a venue or event operator (also referred to as a promoter). This blog discusses primary legal considerations of performance agreements.

While venues are referenced below, depending on the circumstances, it may be the promoter as opposed to a venue which is taking into account the considerations below.

Basic Logistics

A few essential items in a performance agreement are the venue address and contact information, the call time and sound check time, and the duration of the set/performance. Everyone wants to avoid inconsistent expectations. We want to avoid the artist thinking they are performing for an hour with ample sound check time vs. a promoter who wants the artist on for three hours with no prep.

Compensation

Is the compensation a flat fee, or a percentage of tickets? It could also be a free show (not ideal for artists – you can’t pay rent with promotion). If it is a paid performance, is there a deposit or guarantee? When is the compensation paid? Is part or all of it being paid before the performance (how long before?), after the performance date or on the performance date? What is the method of payment? Is tax included or added on, if applicable? Is there interest added if it’s late?

Hospitality

Are there amenities that the venue will provide for the artist? For example, are accommodation or travel being covered in one way or another, from reimbursing the artist to the venue paying for such costs directly. Is there a per diem for food… or whatever the artist wants to use it on? Additionally, are there amenities provided for the artist at the venue itself on the date of the performance, from preferred food and drink (the rider!)?

Backline & More

It’s important for all parties to be on the same page about the backline, lighting, sound and any other equipment considerations.

Recording and Artist Assets

Is the venue recording any portion of the artist’s performance – through photography and/or video? If so, there should be a grant of rights section wherein the artist grants the venue the right to record, as well as other necessary rights relating to the venue’s intended use of the recording, for example, posting on social media. Similarly, the venue should also receive a grant of rights for use of any of the artist’s assets that it may use to promote the gig. This may be use of the artist’s name, photos, music and/or artwork. From the artist’s perspective the question is whether this is reasonable. Also to be considered by all parties are the relevant publishing rights.

Merchandise

Is artist merchandise being sold at the show? If so, who will be managing the merch table – the artist or the venue? The venue may demand a percentage of sales, whether they do the selling or not. This has become a hot topic among all parties in the live music space.

Cancellation and Default

Another key element is about cancellation of the performance or a party defaulting on their obligations. What are the implications where one party unilaterally cancels the performance? Are there instances where cancellation may be allowed or perhaps mandated? Some examples are extreme weather, death and illness. What if the artist fails to show up or the venue fails to keep the stage in a suitable condition for the performance?

Liability, Indemnity and Insurance

Liability, indemnity, and insurance are terms common to most commercial agreements. What happens if injuries occur at the venue during the performance? Similarly, what if damage occurs – either to the artist’s equipment or to property at the venue? Who is responsible? What if a lawsuit is brought against either the artist or the venue in relation to an incident that occurred during the performance. Often, a relevant insurance policy will be in effect that will dictate processes to follow. At the same time, indemnity clauses may say that one party must defend and hold harmless the other party for any claims brought against them.

Conclusion

This blog provides a summary of some of the legal considerations relating to performance agreements. It is not an exhaustive list. Novel situations and circumstances often arise leading to further legal considerations to discuss and have incorporated into your agreements.

For any questions you may have relating to music law and performance agreements, please get in touch with us. We would love to help.

Edwards Creative Law is Canada’s Entertainment Law Boutique, providing legal services to Canadians, and international clients who partner with Canadians, in the Film & Television, Music, Video Games and Apps, Publishing and Literary industries.

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

* This blog is for general informational purposes only and is not to be construed as legal advice. Please contact Edwards Creative Law or another lawyer, if you wish to apply these concepts to your specific circumstances.

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Five New Year’s Resolutions From Your Local Entertainment Lawyers

Michael Duboff — Thu, 21 Dec 2023 21:49:27 +0000

It’s getting to that time of year where individuals reflect on the previous year’s accomplishments and everything they want to work on and improve in the coming year. At Edwards Creative Law, we are no different!

This year, we have come up with a few potential New Year’s resolutions for our creative blog readers out there – but since you’re a regular reader of this blog, you probably already know this stuff!

These fundamental considerations are for creatives of all types to keep in mind when working with others – whether it is a longtime partner, a new collaborator, or someone engaging you for a job.

New Year’s Resolution #1: Don’t Rush

Starting a new project is always an exciting time. However, it is important to take time to make sure that the project, and individuals you will be working with, are the right fit. It’s easy to rush into things when excitement abounds. However, putting the time in upfront can avoid trouble down the road.

It may be much more difficult (and expensive) to resolve a dispute that arises 10 months into a project – after everyone has already put in a bunch of time, effort, and money – than if that issue had been identified and dealt with at the outset because the parties had taken more time to consider their agreement.

It may be a red flag if a prospective partner is putting pressure on you to sign agreements before you have had the opportunity to thoroughly review them.

New Year’s Resolution #2: Know Your Partners

As part of your due diligence before making any commitments, you should spend time getting to know your partners. Have conversations with them. Discuss each of your expectations of the project and of each other. Complete independent research.

Look up the individuals or organizations online to see if they have credits or a virtual footprint. For example, if the partner is selling themself based on prior work and successes, this can often be found online. In addition, speak to mutual acquaintances for their thoughts.

You never know how long you may be tied to a partner, and therefore, you want to make sure they are the right fit.

New Year’s Resolution #3: Discuss Key Terms

Once you are confident in who you are working with, make sure to have conversations with them about the project. Key terms and expectations should be discussed at an early stage.

What are the obligations or services that each party needs to perform? Are there deliverables, and if so, what are the details? Is anyone contributing finances? Who is entitled to receive compensation and/or revenue from the project? What does ownership of the project look like?

New Year’s Resolution #4: Agree on Terms

A direct follow-up to the previous point is to make sure there is agreement on the key (essential) terms of the relationship. Some key terms are identified in the previous paragraph. Recording the agreed terms in some form is important.

While a long-form agreement is not required, a recording that sets out the agreed-upon terms as well as both parties’ agreement of those terms is important in creating an enforceable contract. The parties’ agreement can be shown through signature or a clear communication (such as, an email) wherein each party writes that they agree to the terms.

New Year’s Resolution #5: Work with an Entertainment Lawyer

If you have any questions, issues or need assistance with the topics discussed in this blog (or other entertainment legal topics), know that there are entertainment lawyers to whom you can always turn.

Our job is to advocate for you in legal matters relating to the entertainment industry. This may be to discuss legal considerations relating to your work, draft, and review agreements, evaluate legal risks and discuss how to minimize or avoid them, and many other types of legal services.

Conclusion

This blog identifies a few fundamental legal considerations for creatives to keep in mind as we enter the new year. Remember to take your time, make sure the opportunity is the right one for you, and make sure that the key terms to the relationship are discussed and agreed upon.

If at any time you have questions and are uncertain how to proceed, we encourage you to reach out to an entertainment lawyer for assistance.

From all of us at Edwards Creative Law, we wish you a happy and safe holiday season!

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

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Film and Television Law
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Canada Day 2023: The Perfect Day to Support Canadian Content (7th Edition)

Byron Pascoe — Fri, 30 Jun 2023 13:01:39 +0000

The History of #CandianContent Posts

Canada Day 2023 – 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 2023

It’s been a breakout year for a variety of Canadian performers still very into their careers including Elijah Woods, Devon Cole, Aysanabee, LAVI$H, Jules is Dead, Katherine Li, and many more.

The JUNOs which took place in Edmonton highlighted the many songs popular on streaming platforms to radio, around the world, from vocalists, producers and composers based here in Canada. The annual event moves locations to Halifax in 2024.

For recommendations to build your playlists, check out the recently announced Polaris Prize longlist, with albums from soon to be household names from JayWood to Zoon, alongside industry veterans.

New 2023 Canadian Film and Television Series

A breakout hit in Canada, and ideally soon in the US with a forthcoming release on The CW, “Sullivan’s Crossing” filmed in Nova Scotia included musician T. Thomason in the ensemble cast.

The Oscars constantly has Canadian content, and this year was no exception, including with Women Talking directed by Canada’s own Sarah Polley. Brendan Fraser was the first Canadian to win the Academy Award for Best Actor for The Whale.

Canadian representation at the Prime Emmys included Sandra Oh, Norm MacDonald, and Seth Rogen.

For a full slate of fellow Canadians, check out the nominees of the Canadian Screen Awards. The Porter, Sort Of and Brother are among the many stand outs to check out.

Canadian Books Released in 2023

Unfortunately, the vessel who provided endless interviews with Canadian writers and those far away, Shelagh Rogers recently retired from CBC and her popular radio show The Next Chapter. However, an archive of those interviews and book recommendations are still available online.

Whether you’re intrigued by the unique premise of Scotiabank Giller Prize-winner Sean Michaels’ “Do You Remember Being Born” set to release in September, or you’re drawn towards the poignant narrative of Michelle Porter’s “A Grandmother Begins the Story” published in May, or you’re reading the latest collection of preschool books from Super Simple Songs to your young child, there’s undoubtedly a Canadian book out there for every reader.

#CanadianContent – Video Games

Video games have always been a significant part of the Canadian cultural landscape, as this genre of entertainment continues to be a significant economic driver of the entertainment industry beyond the more traditional ways to ingest content on screens.

In 2023, we have seen some great additions including Montreal’s EA Motive “Dead Space,” a thrilling game that quickly gained traction amongst PlayStation 5, Xbox Series X/S, and PC players.

Out of Vancouver there was “Sons of the Forest” from Endnight. Also with a Vancouver connection was “Minecraft Legends” and out of Toronto came “Ravenlok” by Cococucumber.

Canada Day 2023 Concerts

We have returned to being able to celebrate Canada Day in person, with many other people, and here are some of the performances happening across our country.

Ottawa (LeBreton Flats) – The daytime ceremony will feature Canadian artists such as Delhi 2 Dublin, Tyler Shaw, Josiane and Diyet. Later performances will feature Jann Arden, Aysanabee, Preston Pablo, Jojo Mason, Dax and Madison Violet.
Toronto (Woodbine Park) – If you’re celebrating in the GTA, be sure to visit the Q107 Canada Weekend from June 30^th to July 1^st. Canada Day performances include, After the Gold Rush (Tribute to Neil Young), Monkey Wrench (Tribute to the Foo Fighters), Aeroforce (Tribute to Aerosmith) and more.
Toronto (Harbourfront Centre) – Toronto Symphony Orchestra will kick off festival season with Broadway star Jewelle Blackman playing a free concert on Canada Day. Other performances include the Strumbellas, Crystal Shawanda, the Toronto All-Star Big Band and more.
Winnipeg – The Forks – This year’s theme for Canada Day at The Forks is “Finding our North Star” and the celebration will conclude with a drone show pairing ancestral celestial teachings with cutting-edge drone technology which is new to Winnipeg. Performances include Darryl Buck, Onna Lou, Tommyphyll, HERA, Jade Turner and more.
Vancouver (The Shipyards) – This year, in Vancouver, Canada Day will be celebrated live at the Waterfront at The Shipyards. The event will run from 11:30 pm to 4:30 pm with entertainment and a Beer Garden. This event will feature performances by local artists such as Melanie Dekker – with the Sensational Side-kick, Blazing Eraz, Randy Swallow, and Mostly Marley.
Surrey (Cloverdale) – This free event allows you to experience Western Canada’s largest Canada Day event in the heart of Cloverdale. This event features performances by Broken Social Scene, Corwn Lands, Neon Dreams, JenZ, Kiera-Dawn Kolson, PIQSIQ. and more.
Canada Place (Port of Vancouver) – The Vancouver Fraser Port Authority invites residents and visitors on July 1 for the second annual Canada Together which features a diverse lineup of entertainment and activities and the return of the annual citizenship ceremony welcoming new Canadians. This event will feature performances by Pat Chessell, Spakwus Slolem (Eagle Song Dancers), Adam Woodall Band, The Fugitives, Tegan & Sara and more.
Halifax-Dartmouth (Dartmouth Ferry Terminal Park) – If you’re in the Halifax-Dartmouth area, be sure to visit KANA’TA: Canada Day 2023 celebrations on Saturday, July 1, 2023. This Canada Day event offers a variety of new and refreshed cultural, musical, and family-friendly events to enjoy. Music for this event will feature performances by ANSMA House Band, Dubey Downey, Asia, Cory Adams, Cyndi Cain and JRDN (Jordan Croucher).
Montreal (Old Port) – On July 1st, Montrealers can celebrate Canada Day in the Old Port of Montreal. Like a big neighbourhood block party, everyone is invited to come to the Quai de l’Horloge to have fun, and enjoy a piece of cake. DJs Lux and Klein will end the festivities with a musical performance to get everyone dancing to the beat.

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!

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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.

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Film and Television Law
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Video Game and App Law
Publishing and Literary Law
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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.

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30 Things Music Lawyers Do & Why You Should Hire One

Byron Pascoe — Fri, 17 Mar 2023 19:28:55 +0000

What is a Music Lawyer and What Do They Do?

When asked what a music lawyer does, the initial answer is reviewing and preparing music law agreements or contracts for creators. That’s just the beginning of what a music lawyer can do for your music business.

As music lawyers, our team strives to be an important member of your music team. Our music lawyers are a valuable source of information, providing legal and strategic advice based on their entertainment industry expertise.

We help with an artist’s career by ensuring that you collect the money you’ve earned, and help you leverage your (intellectual property) rights to maximize your income. We advise entertainment law clients across the music industry, including musicians, music producers, music publishing companies, beatmakers, composers, singers, managers, record label companies, live music festivals, venues, and music services companies.

30 Things Music Lawyers Do

Artists and Performers

If you do live performances and record music – whether you are a songwriter, or someone is writing for you – here is a list of thirty things a music lawyer (or entertainment lawyer) can do for you:

1. Review and prepare agreements for major deals with creative collaborators, from co-writers to producers.

2. Review and negotiate distribution agreements, from an indie label to an American major label.

3. Assist you in delivering legal obligations to record labels.

4. Review publishing administration and co-publishing agreements.

5. Prepare band agreements (help negotiate the deal and get the responsible parties to sign).

6. Help you deal with musicians leaving your band, whether parties are amicable or not.

7. Review music industry production agreements.

8. Review management agreements and help you strategize your professional relationship with your manager or management company.

9. Provide advice if your relationship with your manager is going south, including by potentially negotiating, preparing and/or reviewing a management termination settlement agreement.

10. Prepare performance agreements for venues to sign when engaging you to perform live music.

11. Help to you to access royalty statements if you’re not receiving them according to your contractual entitlements, and to review royalty statements to ensure you are being paid properly.

12. Review and prepare featured artist agreements, whether you are the featured artist or engaging the featured artist.

13. Review and help negotiate offers and agreements to sell parts of your music catalogue (songs, albums, and other media).

14. Help keep you protected against accusations of music theft and help if someone allegedly stole your music.

15. Prepare agreements with a partner, such as graphic designers, producing album artwork and other graphics or media.

16. Help you understand contracts to buy and lease beats from websites.

17. Prepare P2 visa applications for artists performing in the United States.

18. Review agreements to compose orchestral music.

19. Negotiate singing contest (and other kinds of contests) agreements.

20. Review agreements to perform music on television.

21. Review agreements to have music synchronized in a film, television show, advertisement or digital media site.

22. Help musicians and songwriters to get samples cleared and music interpolations approved.

23. Provide corporate services, including, setting up a corporation, providing advice with respect to share classes, drafting a shareholders’ agreement, drafting annual resolutions, and documenting when business partners join and leave the corporation.

24. Work with your business manager and/or accountant to ensure everyone is on the same page about finances and is planning for successful careers.

25. Provide advice about whether songs are protected by copyright or are in the public domain, for example if you are interested to adapt, arrange, remix or sample a public domain work.

26. Review influencer and endorsement deals to promote a product or service (ie: brand partnerships).

27. Provide advice about service providers, from grant writers to trademark lawyers.

28. Assist with litigation – either to sue or defend a claim.

29. Answer questions about copyright (intellectual property).

30. Help to ensure you are properly registered to earn all neighbouring rights royalties.

Music Industry Labels and Other Music Entertainment Businesses

As music lawyers, our law firm works with artists across Canada in hip hop, pop, folk, rock, country, blues, and other musical genres. Our entertainment lawyers provide our clients with legal and strategic advice regarding contracts and professional relationships with business partners around the globe.

In addition to artists, we work with other players across the music industry as well. Here is a sample of the music law services we provide to our clients:

Producers: A music lawyer can help prepare and review producer agreements, and publishing deals.

Beat Makers: We help navigate buyout and royalty agreements with artists who want to use their beats, whether a so-called “brain trust” producer agreement or another form of agreement.

Managers: We prepare management agreements, and oftentimes help with their clients’ legal needs.

Music Investors: We prepare agreements for investors looking to invest in artists, music events and other music industry businesses.

Music Service Providers: Our law firm prepares agreements for their clients to sign, which highlights matters from scope to compensation.

Record Labels: We prepare artist agreements, provide advice in dealing with other labels and distributors (major label or not), negotiate agreements with digital media service providers and aggregators, and help find sources of passive rights-based income.

Music Publishers: A music lawyer can prepare agreements for their writer and producer clients.

Music Festivals: From sponsorship agreements to employment agreements, we work with festivals to assist with their music law needs.

Venues: We prepare agreements between venues and artists, both for fixed fee and royalty sharing deals.

Any music lawyer is most effective when speaking regularly with their client and their client’s agents or music team, listening to them, understanding their interests and providing solutions.

Lawyers may not be magicians, but there are many ways we can help. We don’t time-travel (yet), so it’s best to get our input up front to avoid headaches down the road. We look forward to speaking with you about how we can help your music business and career.

–

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Corporate Law: Why, When & How to Incorporate Your Entertainment Business

Mark Edwards — Mon, 21 Nov 2022 15:39:58 +0000

Can an Entertainment Business Incorporate?

Do you ever wonder how to incorporate your entertainment business? Most businesses reach a point when they consider whether to incorporate. This decision on whether or not to incorporate is no different in the entertainment industry. Film producers, music labels, talent agencies, and video game developers are just a few examples of entertainment industry businesses that may eventually decide to contact a corporate lawyer to help them incorporate.

This blog will discuss relevant legal considerations regarding when and how to incorporate your entertainment business.

What are the Reasons to Incorporate your Company

The following are a few advantages of incorporating.

Limited Liability

Corporations are legal entities separate from their owners. As a result, a corporation is responsible for its own debts and other obligations. The liability of the shareholders, directors, officers, and employees of the corporation is limited – with a few exceptions, these individuals cannot be held personally responsible for the debts of the corporation.

Corporate Grants

There are certain industry grants that are only available to incorporated businesses.

Corporate Tax Credits

If you want to access Canadian cultural tax credits, such as are available for films, television series or interactive digital media, the applicant must be incorporated.

Investors

Shares are a convenient and attractive solutions for investors (the shareholder) financing your entertainment business.

Continuous Existence

Private and public corporations live on until they are wound up or dissolved. Other business structures, like a sole proprietorship or partnership of individuals (ie: LLP), are more difficult to continue when the individual owner or partner dies.

Tax Implications

There are a variety of financial tax advantages for corporations. We recommend getting in touch with an accountant for further financial advice on this point.

When is the Best Time to Incorporate your Business?

When is the right time to incorporate your business? Unfortunately, there isn’t a single answer to that question. It will depend on the particular circumstances of your business. For example, for film or television production companies, if you want to access available tax credit programs or other grants, you will want to ensure that you incorporate early in the pre-production stage.

If your business is not required to be incorporated, the decision of when to incorporate is less obvious. As your business grows, a number of things change: risk increases (when to incorporate, to manage and minimize that risk, will depend on your tolerance for that risk): the need for investment capital increases (when to incorporate, to provide a structure for investment, will depend on the capital intensity of your particular business and the availability of other sources such as profit and your own resources); taxation increases (when to incorporate, to minimize tax, will depend on whether you are retaining income in the corporation or paying all of it out to yourself as soon as it’s received).

In addition, incorporating can help to impose structure onto your business – through designated roles and corporate governance (practices and procedures that standardize the decision-making process.

The Process of Incorporating your Business

If you do decide to incorporate, the first question you need to ask is whether you are going to incorporate provincially or federally. One of the main distinctions between the two jurisdictions is that if you incorporate at the provincial level, the registered office of the corporation must be within that province.

A federally incorporated company can have its registered office in any of the provinces or territories. From a corporate governance standpoint, if you choose to incorporate federally, at least 25% of your directors must be Canadian residents. Ontario does not have a similar restriction.

Both Canadian and provincial corporations can be incorporated online without a law firm’s assistance, but a corporate lawyer can add significant value – prior to incorporation, by advising on the choice and availability of the corporate name, and on the use of multiple share classes and their attributes; and after incorporation, by issuing shares, electing directors, appointing officers, passing general and specific operational by-laws and other opening resolutions, setting up the corporate minute book and completing both mandatory and optional filings.

Ontario Incorporation

More information on incorporating within Ontario, can be found here. The basic government fee for registering an Ontario corporation is $300.00 CAD.

Federal Incorporation

More information on incorporating federally, can be found here. The basic government fee for registering a federal corporation is $200.00 CAD.

Who Can Help you With Incorporating your Company?

If you are a business owner and have questions about incorporating your company, we encourage you to speak with Edwards Creative Law or another entertainment lawyer. Our law firm is happy to answer your questions about incorporating and to assist you with the incorporation and post-incorporation processes necessary to incorporate and to transfer your existing business into the new corporation. Read our post about The Meaning and Importance of Shareholders’ Agreements in Canada.

Updated to November 21, 2022

Edwards Creative Law is Canada’s Entertainment Law Boutique, providing legal services to Canadians, and international clients who partner with Canadians, in the Music, Film & Television, Animation, Interactive Digital Media, Game, Publishing and Software industries.

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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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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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