International Services – Edwards Creative Law

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.

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.

Check out our popular blog posts:

Neighbouring Rights in Canada – Being a Musician is a Business
Setting up a Music Publishing Company in Canada
Copyright Protection & Classical Music
Work Made for Hire Explained
10 Co-Production Considerations in Canada – Ask an Entertainment Lawyer
Film Profits & Points – Ask an Entertainment Lawyer
The “Just Trust Me” Legal Agreement

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Publishing and Literary Law
Employment Law
Dispute Resolution and Litigation Law
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Song Parodies and Copyright Law: Criticism is … Critical (and other truisms)

Erin Moskal — Wed, 08 Jun 2022 15:16:59 +0000

Song Parodies – Introduction

Have you ever thought to yourself, “Hey, I’ve got a fantastic idea for a parody song”? If so, your next thought might have been, “do I actually though?” Creating new lyrics to an already-famous song might be funny; certainly, laying different, incongruent lyrics over a familiar song can have that effect. But does that mean it is a “parody” for the purposes of Canadian copyright law?

Copyright considerations

A work of parody, under certain circumstances, may be exempt from what would normally be an infringement of copyright. Traditionally, the concept of parody exists at law as a form of criticism and commentary and is an extension of freedom of expression. In Canada, works of parody are protected from claims of copyright infringement under the doctrine of “fair dealing”, which is similar to but distinct from the U.S. doctrine of “fair use”. Fair dealing generally, and the specific parody exemption, are an attempt to balance a creator’s ownership rights with an individual’s right to freely express themselves.

Options for exemption

The fair dealing exemption is codified in the Copyright Act (Canada) and provides that, under certain circumstances, use of a copyright protected work does not infringe copyright if the work is used for one of the following purposes: research, private study, criticism, review, news reporting, education, satire, or parody. [1] Importantly, not all song parodies, even if they are referred to as parodies by the artist, qualify for the exemption. Here is a hypothetical that has a relatively common fact pattern: a song (let’s call it Gangnam Paradise) that an educator wrote and recorded to teach children phrases in Korean, is sung to the melody and over similar beats as those featured in the song Gangsta’s Paradise, made famous by Coolio. The song contains no commentary on gang culture or criticisms of Coolio – Gangsta’s Paradise is actually about the pessimism a gang member in south central LA felt about his life, surroundings and violent, dangerous lifestyle.

[1] In addition to falling into one of the fair dealing categories set out in the Copyright Act, the use of the content must also be “fair”, which is a question of fact and depends on the circumstances of each case. The following factors can be considered in assessing whether a dealing was fair: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. Although these considerations will not all arise in every case of fair dealing, the list provides a useful analytical framework to govern determinations of fairness (See CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 (CanLII), [2004] 1 SCR 339).

Would the spoof song Gangnam Paradise qualify for the parody exemption to copyright infringement in Canada?

Cases of infringement

There are few Canadian cases that have directly deal with parody songs, but U.S. law on the subject can be informative (though not determinative) in helping determine the scope of Canada’s parody exemption, especially if you’re a Canadian artist who plans to distribute music in the U.S. (everyone?). The famous U.S. Supreme Court case, Campbell v. Acuff-Rose Music, Inc., found that where a potential parody imitates the characteristic style of the original author, the parody version must “ridicule or criticize the copied work itself.” This is not the only consideration a court would make, but if the principle in Acuff-Rose were applied to our example, arguably, the lyrics of Gangnam Paradise would not qualify as a parody as it has nothing to do with the lyrics of Gangsta’s Paradise and does not contain any criticism of Coolio or the song’s message. In our example, the parody version would likely infringe the copyright in the underlying song, Gangtsa’s Paradise.

Licence Agreements

You may wonder how Weird Al Yankovic, perhaps the world’s best-known parody artist, avoided copyright disputes in making his “parodies” as they almost always fall into the “funny new lyrics” category and not the “criticism of the subject matter or author” category.

He did this simply: by getting permission from the copyright rightsholders in the form of a licence. Note, Coolio claimed he didn’t personally approve Weird Al’s song Amish Paradise as a “parody” of Gangsta’s Paradise, initially saying that he thought it took away from the serious message of the original work (though he softened his position on his opposition to the spoof years later). Another twist in this story is that Gangsta’s Paradise uses and interpolates samples from Stevie Wonder’s lesser-known track, Pastime Paradise (for more, see our blog about interpolations).

Also important to note is that parody only exists as an exemption to copyright infringement, and there is no similar exemption in trademark law. So be careful that your song doesn’t also use logos, brands or slogans owned by others without their permission.

Song parodies – Conclusion

It has been said that a joke is a misdirection, a magic act that plays with expectation, logic and surprise. Certainly, new lyrics sung over a familiar tune can, in this way, create something genuinely amusing. But the surprise at discovering the difference between the everyday use of the term “parody” versus a “parody” for copyright law is something you or a music publisher might not find particularly funny.

If you have any questions about parodies, including regrading helping you get permission whether or not your song arguably is a parody, or other entertainment law questions, please reach out, we’d be happy to help!

[1] In addition to falling into one of the fair dealing categories set out in the Copyright Act, the use of the content must also be “fair”, which is a question of fact and depends on the circumstances of each case. The following factors can be considered in assessing whether a dealing was fair: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. Although these considerations will not all arise in every case of fair dealing, the list provides a useful analytical framework to govern determinations of fairness (See CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13 (CanLII), [2004] 1 SCR 339).

Updated to June 6, 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.

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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Canadian Copyright Law: Does Digitally Restoring Public Domain Films Revive Copyright?

Erin Moskal — Mon, 09 May 2022 17:46:03 +0000

Canadian Copyright Law – Introduction

Canadian Copyright Law: Does Digitally Restoring Public Domain Films Revive Copyright? Copyright can be a muddy area of law, despite the Copyright Act (Canada). One reason is the difficulty the law has in keeping up with emerging technologies. The digital restoration of old films is one example.

This is an era of digital restorations and re-releases of old films but the copyright status of those restorations is unclear. Does the digital restorer have copyright in the restored version of a public domain film or can it be freely used by a third party on the basis that the film is in the public domain?

This blog explores how, if at all, digitizing and/or restoring a film is treated under copyright law in Canada? More specifically, if the film in the public domain and copyright has expired, is the digital restoration of the film result in a copyright in the digitally restored version?

The Nature of Copyright

Copyright law in Canada is governed by the common law and by the Copyright Act (the “Act”) Copyright subsists in every original literary, dramatic, musical, and artistic work if it meets certain requirements set out in the Act.

The threshold for what is “original” is not particularly high. What is required is an exercise of skill and judgment: the work must be more than a mere copy of another work, but it need not be creative.

In CCH Canadian Ltd. v Law Society of Upper Canada [2004] 1 SCR 339, the Supreme Court of Canada wrote the following about the exercise of skill and judgement:

[Skill, means] the use of one’s knowledge, developed aptitude or practiced ability in producing the work. [Judgment means] the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work. This exercise of skill and judgment will necessarily involve intellectual effort. The exercise of skill and judgment required to produce the work must not be so trivial that it could be characterized as a purely mechanical exercise. For example, any skill and judgment that might be involved in simply changing the font of a work to produce “another” work would be too trivial to merit copyright protection as an “original” work.

Canadian Copyright Law and Digital Restoration

Canadian courts have not considered specifically whether digital restoration of a film gives rise to copyright in the digitally restored version. However, we can draw certain conclusions about the probable outcome based on the exercise of skill and judgement required to digitally restore a film.

The digitization of film can be a process that is solely automated, and software based. There is widely available software that can perform the process of converting tape to digital file that takes only a trivial human effort. The process of film restoration, on the other hand, is not so rote. Often, restoring film refers to the actual repair of damaged film in order to restore what was originally captured. Restoration may also involve digital colour correction or audio manipulation. Restoration is not a purely mechanical process, but one that requires a combination of “evaluation of different options”, “intellectual effort” and “practiced ability”.

The Criterion Collection is one organization that frequently re-releases digitally restored versions of older films. Lee Kline, Criterion’s technical director, in speaking about the process involved in Criterion’s digital restoration of Alfred Hitchcock’s film, Foreign Correspondent, offered the following insights:

“[T]he first step in the process is tracking down the negative, or a print, that is in decent condition. In this case, that meant going to the Library of Congress, which had the original negative of the film. Criterion scanned it at 2K resolution, frame by frame, into digital files … Color is graded; dirt and scratches are retouched; audio is remastered. The team uses a combination of automated software that detects and removes flaws in the image, and manual re-touching of every frame. The entire process can from [sic] a few weeks to a few months for a single film, depending on the original condition it was in. [Emphasis added]

Kline adds that restoration of a film involves determining what the restored film should look like. To do this the works of both the director and cinematographer from the relevant time period are considered, as well as whether the film was shot on location or in studio.

Kline’s comments show that the process of digital restoration is a combination of automated software and human effort. If a film’s digital restoration follows a similar process, the resulting digital restoration may well be protected by copyright.

Canadian Copyright Law – Conclusion

Like most novel legal questions, we will not have certainty until it is addressed by our courts or legislature. However, some answers are more likely than others.

If you are looking to copyright a public domain film that you have digitally restored, you will need to ensure that the exercise of skill and judgment is evident in your process. Simply running automated software will not suffice. Adding in your own elements or touches to the digitally restored version makes a stronger argument for passing the originality test. On the other hand, if you would like to use another individual’s digital restoration of a public domain film, you need to be equally aware that the digitally restored version may be subject to a new copyright. Contacting the individual that digitally restored the film and understanding their process is a good first step.

For further information about copyright law, we encourage you to reach out to us for a consultation or visit our blog on Moral Rights in Canada.

Updated to April 11, 2022

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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ABCDEF GEE, What’s The Deal with Music Interpolations?

Erin Moskal — Fri, 22 Apr 2022 11:30:49 +0000

Music Interpolations – Introduction

The biggest song in the world, at the moment this is being written, is Gayle’s, abcdefu – a very catchy song about an ex-boyfriend.

The song inspired talented Canadian artist Tyler Shaw, to offer his own take on the pop hit: the romantic, Love You Still (abcdefu romantic version).

The Original

Gayle’s version of the chorus begins:

A-B-C-D-E, F-U

And your mom and your sister and your job

(don’t worry, she’s not mad at her ex’s dog)

Tyler’s Version

Tyler’s version goes like this:

A-B-C-D-E-F-G-H-I love you still

And you know I always will

More Than A Cover

Tyler’s version is definitely based on Gayle’s version – Tyler doesn’t deny that – but Tyler’s version is not considered to be a “cover” of Gayle’s song.

Why is this? Tyler’s version is something more than a cover – it changes important elements of the song, most notably, the lyrics, and creates a derivative of the original song. Despite not being a cover, Tyler’s version (no, not Taylor’s version) is based on Gayle’s composition. As such, in order to produce his version, Tyler’s team needed permission from the people and/or companies that represent Gayle’s composition.

Like with most songs, they are not just written by one person, and to find out who the writers and publishers are of that composition. One place to find out who the owners of a composition are, is the ASCAP Repertory. From a search of the composition, you can see the list of writers, and Universal Music representing each of three writers, either directly or indirectly. A search on SOCAN’s Public Repertoire yields different search results in this case, … but that’s for another blog.

Music Interpolations Or Derivative Works

Whether its an interpolation or a derivative work – one composition is based on the other – and permission is needed. In the case of Tyler Shaw’s, Love You Still (abcdefu romantic version), he needed permission from Universal Music.

Check out the credits on the song on Tyler’s song – they list the same writers as Gayle’s version, plus Tyler. To be clear, simply giving people credit does not mean you have permission to use their music; however, in order to get permission you may need to promise to give credit where its due: to the writers and publishers of the original work. Giving credit where it’s due – both are strong songs in their own right.

Unfortunately, finding the proper rightsholder is only the first challenge. The next one is getting them to respond to you, at all, let alone getting them to give you permission to use their composition.

Response Songs

Another popular type of derivative works are “response songs” – especially on TikTok. Response songs are written from the perspective of a different character in the same song. The artist recording the response song is generally not the writer or owner of the original song. Response songs usually require permission from the rightsholder as well, being the publisher(s) of the original song, as there tend to be elements of the response song taken from the original.

Also to note is that every song writer is their own music publisher until they provide their publishing rights to someone else. For more information about publishing rights, here are some of our blogs: Music Rights Administration and Music Publishing Agreements

Copyright: Recording v. Composition

So far, I have focused my discussion on the rights in the composition – the underlying written music of the song – and have not addressed the rights in Gayle’s recording. The copyright in Gayle’s recording is distinct from the copyright in the underlying composition. Tyler does not need permission to use the recording if none of it is used in his song. In fact, Tyler did not use any of the original recording in his version, and no permission was required. However, if someone wanted to sample Gayle’s abcdefu, they would need permission would from both the owner of the recording and the owner of the composition.

Music Interpolations – Conclusion

If you have questions about who you need to get rights from, or about the process, or if you need help navigating the agreement that a publishing company provides to you, we can help.

In the meantime, here are the videos for the two songs:

Gayle’s abcdefu (original version)

Tyler Shaw’s Love You Still (abcdefu romantic version)

Is there a great song out there you have a unique take on – perhaps with new lyrics?

Updated to April 11, 2022

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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10 Software Services Agreement Tips

Erin Moskal — Fri, 01 Apr 2022 12:30:37 +0000

10 Software Services Agreement Tips – Introduction

If your team creates software solutions, the following service agreement tips should provide some of the key issues to cover in your initial discussions with a potential client.

Statement of Work

The agreement should include a statement of work, which identifies the project’s scope and the respective responsibilities of you and your client. Oftentimes, if conflict arises, it’s because the scope wasn’t properly defined, which led you and your client to interpret the extent of each party’s obligations differently.

Proprietary Rights

While creating the work as the service provider, you may create new generic elements that you want the right to use for future client work. Therefore, ensure these generic elements (and third-party software) are distinguished from the code that will be owned by your client. Review the agreement sections detailing ownership of the Intellectual Property so that you and your client are clear on who will own and have the right to use elements of the work created.

Delivery

How and when is the work being delivered? Ensure the answers are clearly outlined and are attainable.

Fees

Clarify what you are being paid and when. It can’t hurt to clarify that HST, if applicable, will be added. Regarding the payment schedule, one option is that a portion is paid when the agreement is signed, and the rest is paid on milestones associated with deliverables. Consider your cash flow before agreeing to a schedule that seems too delivery-focused. Also, you can leverage Intellectual Property to ensure payment by making sure that the full rights to use the deliverables don’t transfer to the client until payment is received in full.

Change Requests

Plans change over time, and the scope of your arrangement may need to be amended at some point along the way. To plan for this, there should be a process set out in the agreement to account for change orders. The process should require changes orders be made clearly and in writing, and that changes in fees and schedule are spelled out and agreed.

Warranty versus Maintenance and Support Services

Are maintenance and support services included in your fee? If so, to what extent will these services be provided before you start charging extra? Also, how will both parties deal with any defects in the deliverables? Do you provide a period of warranty to cover your client for a certain amount of time, or indefinitely, to fix bugs?

Delays

What situations should extend the deadlines? If your client is late on providing you assets or the collateral you need to finish the job, how should the deadlines be amended? Who will bear the cost resulting from delays?

Publicity

Do you intend to showcase the client’s logo and a sample of the work you’ve done for the client on your web site? Be sure to get the go ahead in advance.

Indemnification

Among other protections, the agreement should provide that the client will cover you should the assets they provided (such as their artwork / logos) infringe the rights of others. Why should you be exposed? Make sure that risk stays with the client.

The Right Client

A well-drafted agreement can only go so far in helping you deal with a difficult client. If, during pre-agreement discussions, the client is being very difficult, demanding unrealistic timeliness, and/or providing insufficient financial incentives, they may not be the right client for you. While it’s easier to say no to a potential client when you have other opportunities available, not having other business might not be a good enough reason to do business with a client that isn’t a good fit.

10 Software Services Agreement Tips – Conclusion

This blog merely scratches the surface of considerations to keep in mind when working with service agreements. If you are a software service provider or potential client, and have questions about service agreements, we encourage you to speak with Edwards Creative Law or another entertainment lawyer.

For information about other instances of gathering and waiving rights in agreements, we encourage you to visit our blog entitled Gathering and Waiving Rights – Ask An Entertainment Lawyer.

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Updated to March 24, 2022

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What is a Sunset Clause and why you should care?

Erin Moskal — Thu, 23 Dec 2021 20:31:11 +0000

What is a Sunset Clause – Introduction

Have you ever watched the sun go down on the beach? I bet you could actually see it wane into a tiny disc on the horizon, like a golden coin, and then evaporate in a whisper. The sun has officially “set”. Yet, it is not immediately dark. The afterglow often remains for an hour or two, providing some of the sky’s warmest and most dramatic colours. And that’s the end of my legal blog, enjoy your evening (signed, Bob Ross).

Breakdown

But that is not the end of my blog. My point is, that although “a thing” may be technically over, there is sometimes a residual period during which elements of the “now over thing” remain. A sunset clause in a contract is an example of this. A sunset clause provides for a set period of time, after the termination or expiration of a contract, during which one party continues to receive certain benefits (such as a share of revenue) under the contract. Often, sunset clauses are found in agent agreements in the film and television industry or manager agreement in the music world; however, sunset clauses are found in many other contexts as well.

Background

The theory behind sunset clauses is that, even though a contract has ended, a manager or an agent should still be entitled to receive benefits for work done by them during the term of the contract. Without a sunset clause, when a contract ends the artist may continue to benefit from the agent or manager’s work, without compensation to the agent or manager.

For example, a manager works for years to get an artist a big deal, which lands moments after the manager’s contract with the artist ends. The manager, the person responsible for bringing the deal to the artist, may be cut out. A sunset clause protects managers and agents in such a scenario.

What is a Sunset Clause – The time debate

How long should a manager be able to share in their former client’s income? Perhaps, like the light of dusk after the sun has set, it should decline after time. The manager likely has no active responsibilities or obligations to secure the income stream, even if the manager was directly responsible for having created the opportunity.

Leverage

Sunset clauses are not a foregone conclusion in an agreement. Like any provision, a party is only as likely to get the benefit a sunset provision if they have leverage to make the other party agree to it. What could such leverage be? Maybe the agent is a career-maker who greatly increases their clients’ prospects of having a successful career. Maybe the manager has a direct line to the head of A&R at Republic Records. To an artist, the prospect of paying a continuing revenue stream after having been made successful and wealthy may not seem so bad. But even managers who are not in the habit of making their clients career superstars may (and still do) ask for a sunset clause. However, always keep in mind managers need good talent to manage as much as artists need good, smart, connected agents and managers.

We help artists review sunset clauses they are asked to agree to when starting to work with an agent or manager. We also help managers prepare sunset clauses.

What is a Sunset Clause – Conclusion

The big question generally is whether a sunset clause is reasonable? One answer is that “sunset clauses are reasonable so long as they’re reasonable.” Helpful? The point is that not all sunset clauses are the same. There are many different ways a sunset clause can be written, just as there many different factors involved in preparing a sunset clause. Questions to consider when planning a sunset clause include how long the sunset clause will last, the scope of the revenues subject to the sunset clause, the commission percentage throughout the sunset clause term, and whether any specific outcomes must have happened during the term in order to trigger the sunset clause.

If you have received an agreement with a sunset clause, or if you want a client to sign an agreement with one, please let us know how we can help.

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Updated to December 23, 2021

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US Workers Entering Canada for Film & Television Productions: Immigration Law

Erin Moskal — Mon, 01 Nov 2021 16:39:07 +0000

Author: Michael Duboff, Entertainment Lawyer

US Workers Entering Canada for Film & Television Productions – Introduction

When it comes to creating film and television programs, most producers have enough to think about without having to worry about immigration laws. However, understanding relevant immigration laws can be vital knowledge for Canadian producers seeking to engage U.S. residents to work in Canada. This blog will discuss what Canadian producers need to know when hiring U.S. workers.

Generally, foreign workers seeking employment in Canada require a work permit, which must be applied for via a Labour Market Impact Assessment (LMIA). However, thanks to an exemption found under the Immigration and Refugee Protection Act (IRPA)—affectionately dubbed the “C14 exemption”— some foreign workers employed in the film and television industry are exempt from this requirement.

The Film and Television Exemption (aka the C14 Exemption)

The C14 exemption applies to essential foreign workers in the production stage (filming) of live-action television or film projects that are filmed in Canada. Notably, the C14 exemption applies to both foreign and Canadian productions. Only part of the production must be filmed in Canada for the exemption to apply.

Eligibility Requirements

There are three primary eligibility requirements, which are:

The work must be essential to the live-action TV or film project in the production stage (filming). Essential positions are those where the physical presence of foreign workers on location in Canada is required.
The work must be “high wage”. The requirement for high wage work means that Canada will reap a significant economic benefit from hiring a foreign worker (for example, from tax revenue) and protects the Canadian labour market from wage suppression. Generally, the benchmark of a high wage is a wage that is at or above the provincial or territorial median hourly wage where the job is located.
The work must be unionized. Proof of unionized work demonstrates that the employment of the foreign worker is critical to the production occurring in Canada while protecting the direct employment of Canadians.

Examples of workers/roles that have been found to meet the eligibility criteria for the C14 exemption are directors, actors, stunt persons, choreographers and lighting specialists. On the other hand, most pre- and post-production, and longer-term administrative work, is generally found not to be eligible. These roles may include storyboarding, visual effects, sound editing and film editing.

Other Avenues for C14 Exemption

Television and film workers who do not qualify for the C14 exemption may still be evaluated on a case-by-case basis by an IRPA officer who may determine that the worker is eligible for a different LMIA exemption category. One example is the C10 exemption which applies to foreign workers who “create or maintain significant social, cultural or economic benefits or opportunities” for Canadians. Clearly this won’t apply to all film and television workers, but will apply to some. Workers may also apply for a standard work permit through the LMIA Temporary Foreign Worker Program. The LMIA application process can be onerous, broken down into various categories, each of which has its own documentary requirements, processing times and processing fees.

US Workers Entering Canada for Film & Television Productions – Conclusion

While immigration matters can often be a source of headache and frustration for foreign workers looking to cross the border for work, there are a number of important regulations and exemptions to make the process easier. Understanding the relevant laws is key for both U.S. workers looking to work on a production in Canada as well as for Canadian producers looking to hire workers from the U.S.

For more information, we recommend you look at the IRPA resources here or contact one of our lawyers at Edwards Creative Law.

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Setting up a Music Publishing Company in Canada – Being a Musician is a Business

Erin Moskal — Fri, 13 Aug 2021 12:30:10 +0000

Setting up a Music Publishing Company in Canada – Introduction

Setting up a music publishing company in Canada may seem like a daunting task, you may have questions about the cost and whether it is really necessary. Here is a story to give you some insight into the process.

Understanding the Need for a Music Publishing Company

A musician told me he was contacted by an established music publishing company. They’re interested to represent his music for publishing opportunities, namely to get the music placed in TV series, movies, advertisements and games.However, he was told that because he doesn’t have his own publishing company, he wouldn’t be able to directly collect his publishing performance rights royalties. While that’s accurate, it shouldn’t be the end of the story.

What is SOCAN and How Does It Benefit Musicians?

Publishing Company Step 1 – SOCAN

To help understand the context, let’s start with SOCAN. SOCAN (the Society of Composers, Authors and Music Publishers of Canada) represents the Canadian performing rights of Canadian and international music creators and publishers.

As SOCAN describes it, whenever a copyrighted piece of music is played publicly, such as on the radio, in concert, or on television, the writers and copyright owners of the music are entitled to a performance royalty. For example, a Canadian TV network, that uses music for public performances, pays license fees through a series of tariffs (set by the Copyright Board of Canada) to SOCAN, who pay a performance rights royalty to the relevant writers and copyright owners of music that was performed publicly.

How Are Performance Rights Royalties Distributed?

Publishing Company Step 2 – Calculations

The Getting Started: Choosing a Name for Your Music Publishing Companywriter(s) are entitled to 50% of the performance rights royalties – the writer’s share. The copyright owner(s) are entitled to other 50% – the publisher’s share. A musician will be entitled to all of the publisher’s share in her music unless she gave some of her rights to a publisher.

The music publisher will likely want to receive a percentage of the up-front fees from a publishing sale, and a percentage of the publisher’s share of the performance rights royalties.

Let’s return to the musician who contacted me. The publishing company wanted 50% of the publisher’s share of performance rights royalties (a typical co-publishing deal), and another 20% of the musician’s 50% as compensation for collecting the musician’s performance rights royalties as the musician doesn’t have a publishing company.

Musicians should not accept losing money because they don’t have their own publishing company. At a certain point, another reason to set up a publishing company is for tax planning purposes.

Getting Started: Choosing a Name for Your Music Publishing Company

Setting Up a Music Publishing Company in Canada Step 3 – Naming

How do you go about setting up a music publishing company in Canada? First, pick a name. I’d call mine Pascoe Music Publishing. Although my brother Noah Pascoe (https://pascoe.bandcamp.com – shameless plug) or Ottawa-based country musician Jesse Pascoe (www.JessePascoeKP.com – no relation) might snatch the name first! SOCAN does not require that it be a corporation. It can be your sole proprietorship, or be a partnership.

I would also register the name of the business for $60 to comply with the Ontario Business Names Act. If you carry on business under a name other than your own, there’s a legal obligation in Ontario to register the business name. If not, you could be fined, among other issues. A business name registration doesn’t grant exclusive rights to the business name.

How to Register with SOCAN as a Music Publisher

Publishing Company Step 4 – Membership

To set up a SOCAN publishing membership, which no longer has a required registration fee, you must demonstrate you either (a) own at least 5 copyrighted protected musical works written or co-written by a writer member of SOCAN or by a Canadian; or (b) are entitled by contract to receive the publisher’s share of the performance credits of at least 5 copyright protected musical works that were written or co-written by a writer member of SOCAN or by a Canadian.

If you’re a Canadian songwriter, who has written 5 songs, one option is to assign (give) the publisher’s share of the performance rights royalties from you personally to your publishing entity. This can be done by a short and sweet agreement. If it were me, the publisher’s share of the performance rights royalties from songs A, B, C, D and E (I need better song names!) would be assigned from myself personally to Pascoe Music Publishing. The assignment would include the song names, and would be submitted to SOCAN during the application process.

Returning to the musician, his response to the established publishing company is that he’s setting up a SOCAN publisher membership, and therefore the established publishing company will not be taking any additional fees to compensate them for collecting the musician’s performance rights. The songs will be registered with 50% of publisher’s share going to the established company and 50% of the publisher’s share going to the musician’s publishing company.

Final Takeaways: Do You Really Need a Publishing Company?

Also to note is that SOCAN will provide 100% of the performance rights royalties (50% writer share and the 50% publisher share) to a musician when a song is registered with SOCAN and there is no designated publisher. Therefore, you don’t need to set up a publishing company to collect your SOCAN publisher’s share of performance rights royalties if you’re entitled to all of the publisher’s share. While we’re on the subject of sharing, feel free to share this post with your people who may benefit from this content!

The link to register for a SOCAN publisher membership is as follows: https://www.socan.com/sign-up-for-performing-rights/

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Gathering and Waiving Rights – Ask An Entertainment Lawyer

Erin Moskal — Fri, 30 Jul 2021 13:00:20 +0000

Gathering and Waiving Rights – Introduction

Today we will look at gathering and waiving rights; from the inception of an idea, through its evolution into a film, producers of film and television must gather all the intellectual property rights in their productions. A producer acquires these rights by entering into contracts with the various people who provide services to the production (for example, the production’s cast and the crew). In exchange for payment of their wages or fees, cast and crew members should be required to transfer to the producer all the intellectual property rights created as a result of their services. But why does a producer need to acquire these rights? And what rights specifically must a producer ensure are transferred? Glad you asked!

Chain of Title

When a producer owns all of the rights in a production it is said to have a complete Chain of Title, i.e. an unbroken series of contracts that demonstrate that all rights have been transferred to the producer. The Chain of Title tracks the ownership history of the rights and verifies that the producer owns all the rights required to produce the production.

Why must a producer have a complete Chain of Title? Some of the main reasons include:

Financing

A third-party financier (such as a bank) must be satisfied that all rights are owned by the producer (the bank will hold those rights as security against the loan) before agreeing to finance the production.

Certainty

Producers do not want cast and crew members to claim they own rights in a production because those rights were never properly assigned. Such claims may arise years down the road with the former cast and crew members demanding extra payment. By keeping a complete Chain of Title, producers are able to prove they own all the rights in a production.

Distribution and Exhibition

TV networks, movie theatres, and other distributors and exhibitors want to be sure that the producer owns all the rights in a production. Otherwise, there is a risk that a third-party may claim rights in the production and demand payment, or worse, stop the production from being exploited altogether.

Insurance

Producers will not be able to obtain Errors and Omissions insurance without a complete Chain of Title.

Intellectual Property Rights

In Canada, under the Copyright Act, an employer automatically owns copyright in works created by an employee that are made in the course of employment. Independent contractors, on the other hand, retain ownership of the intellectual property they create unless they are expressly assigned. Typically, most of a producer’s crew are independent contractors. Producers must therefore ensure they have strong independent contractor agreements which transfer ownership of all the results and proceeds of the crew members’ services to the producer.

Where a producer hires an employee, even though copyright may be assigned automatically, the employment agreement should clearly describe that both the producer and the employee understand and agree that the producer will be the owner of all intellectual property created by the employee during the course of employment.

Moral Rights

A producer must also obtain a waiver of moral rights (please, no immoral lawyer jokes). Unlike intellectual property rights, moral rights cannot be assigned (which is to say that they are forever held by the creator). They can, however, be “waived”, meaning the creator promises not to enforce their moral rights against the producer. Importantly, an assignment of intellectual property rights does not establish a waiver of moral rights. Moral rights must be expressly waived in addition to the transfer of intellectual property rights.

In Canada there are three types of moral rights:

(i) the right to the integrity of the work (which includes the right to prevent alteration of the work which might damage the creator’s honour or reputation, and the right to prevent the work being used in association with a product, service, cause or institution);

(ii) the right to be associated with the work (the right to be identified as the author of the work by name or pseudonym); and

(iii) the right to remain anonymous.

If moral rights are not waived, a creator could potentially stop a producer from altering that creator’s work or using it in certain contexts, both of which the producer may require in order to develop its production.

Gathering and Waiving Rights: Conclusion

In sum, a producer must ensure that all cast and crew assign to the producer any intellectual property rights created as a result of their services and provide a waiver of moral rights in favour of the producer and the producer’s licensees, successors, and assigns.

As always, reach out to us if you have any questions, or if it happens that you are using an old contract (perhaps which you have not closely read) as a precedent, and particularly if that precedent came from a U.S. source.

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Author: Ian Harris, Entertainment Lawyer

10 Legal Considerations for Filmmakers in Canada

Erin Moskal — Fri, 16 Jul 2021 15:35:13 +0000

10 Legal Considerations for Filmmakers: Introduction

Whether you are a new or experienced filmmaker, there are a number of important legal considerations to keep in mind as you go through the stages of filmmaking, which include development, financing, filming, post-production, and distribution.

1. What is a “Chain of Title”?

A Chain of Title refers to the documents that establish ownership rights in a property, such as the concept for a film or TV series. Such rights are sometimes transferred from the creator of the property to a producer through a contract called an “option agreement”. As a producer, an option agreement may be appropriate where you want to produce a film or TV series based on an existing property (such as a book), but do not yet have the funding to do so, including the money needed to pay the creator for their rights in the property. The option agreement will normally provide the producer with an exclusive time-limited right to buy the rights needed to produce a production based on the existing property. With the option in hand, the producer can seek financing, and may choose to exercise the option once financing is obtained (so long as the option term has not expired).

For more information, here’s our blog about option agreements

2. What do I need to know about music?

Will your project include music? If the answer is “yes”, you need to ask if it will be original music, existing music, or both? If original music is going to be used, consider whether you will need a composer agreement and whether the music will be licensed or purchased outright. Also consider if the composer will be given some or all of the publisher’s share of the performance rights royalties (perhaps in exchange for paying the composer below their normal rates)? If you plan on using existing music, you should understand the difference between master use rights (the right to use the master recording) and synchronization rights (the right to use the composition). One option to save on costs might be to purchase synchronization rights and have a new master recording created.

For more information, here are our music law blogs (click on Music)

3. What kind of insurance do I need?

In addition to production insurance, Errors and Omissions insurance is important to understand. This type of producer’s liability insurance is often required if your content is going to be exhibited in theatres or on television, and helps to protect producers from lawsuits pertaining to the production.

For more information, visit our E&O blog

4. What do I need to know about crew agreements?

Some key aspects of crew agreements include clarifying the job description, fee and payment schedule, termination, effect of termination, and confidentiality.

Here is our blog about assigning intellectual property and waiving moral rights in the crew context.

5. What do I need to know about actor agreements?

When dealing with actor agreements, important considerations include the dates the actor is required to perform, the fixed fee (guaranteed salary) and contingent compensation (the potential for a share of profits), residuals, whether the fee is “pay or play”, credits, approvals, grant of rights, termination, and dispute mechanisms.

6. After all of my pitching, what do I do if someone wants to give me money to make my project?

Investment agreements, which set out the terms for someone providing money for a production to be made, should include defining gross receipts and net profit, credits, other benefits (such as potential waterfall entitlements) and remedies.

Our blog post focused on how investors may be compensated can be found here.

7. 10 Legal Considerations for Filmmakers: If and when should I incorporate?

People may run their business as a sole proprietorship, partnership (if there are multiple partners) or as a corporation, which creates a new legal entity that is separate from its owner(s). One reason to incorporate is to access Canadian tax credits. If incorporating is on your mind, it is often a good idea to speak to an accountant and/or a tax credit consultant! Let us know if you want a referral.

8. How should I organize my relationship with my co-producer?

You may want to enter into a short-form memo of understanding or a full-fledged co-production agreement with your producing partner. As always, it is always best to set out the terms of an agreement in writing to avoid future troubles. Regardless of whether you choose a memo or a formal written agreement, the focus is to determine the rights and responsibilities of each co-producer. It’s best to ensure your expectations are aligned before its too late.

Here is our blog on co-production agreements.

9. What should I know about distribution?

So, you have officially produced a film. Now what? One way to get it shown across the country (and the world) is through a distribution company—a company that specializes in making the types of sales which eventually lead to an audience paying to watch the film. Some common red flags in distribution agreements include inconsistency between what you are told and what is in the agreement, uncapped expenses, insufficient clarity in defining the distributor or sales agent’s obligations, audit rights, as well as balanced rights and termination provisions.

We have a blog post centered on sales agency and distribution agreements.

10. Do I need permission for showing X or saying Y?

It is important to understand when you need to seek permission to include certain dialogue or show certain third party owned content within a production you have made. Better to ask ahead of time for advice on this front as opposed to dealing with these challenges after production has wrapped.

10 Legal Considerations for Filmmakers: Conclusion

That’s a wrap, but if you have any questions about anything raised in this blog, please get in touch with us. Also, you can watch this video featuring our lawyer Byron Pascoe speaking about these topics –

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The Right Client

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What is a Sunset Clause and why you should care?

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