inkline_admin – Edwards Creative Law

Assigning Concept Rights in Canada – Ask An Entertainment Lawyer

inkline_admin — Sat, 02 Oct 2021 05:51:16 +0000

Author: Mark Edwards, Entertainment Lawyer

Assigning Concept Rights in Canada – Introduction

Recently, I have been asked about assigning concept rights to a single purpose production company (“SPPC”) – in the first case, to assign the rights, in the second, to unwind an assignment that went far beyond what was needed. Incorporating an SPPC is standard practice when producing a film or television series or a significant game. When it’s created, an SPPC is an empty shell. To produce the film, show, series or game the SPPC must have rights to the concept, rights that typically come from your production company (“ParentCo”).

What is a Concept?

The first thing to remember is that to own a concept is to own a bundle of rights. These rights are infinitely divisible – they can be specific to types of use, a media platform, a creative medium, a product, a language, a time period, a geographic region, etc. Second, an SPPC is almost always a unique combination of elements – a very particular mix of owners, employees/contractors, customers and creditors.

Granting Rights

Unless there is a very good reason to do so, ParentCo should only grant the SPPC the very specific rights in the concept that it requires to achieve its limited purpose; for example, to finance, produce and exploit the first season of a television series. You might want the SPPC you incorporate for season two to be owned by different shareholders, to be staffed by different people, to be financed by different sources. Getting the rights for season two, if they have been assigned to the SPPC for season one can be a very significant problem.

Licensing Considerations

As well, in every rights assignment there should be a licence back, to ParentCo, of the derivative IP created by the SPPC. In every production, almost by definition, there will be elements created that were not in the original concept: new characters, settings, music, storylines, etc. While the SPPC can’t use those elements for anything other than its limit purpose (season one), neither can ParentCo, which can be a real problem assuming that you want to include those elements in season two.

Assigning Concept Rights in Canada – Conclusion

I like to think of ParentCo as the quarterback – controlling and directing the exploitation of the concept, deciding for each particular product which legal entity is going to be used and exactly how broad its rights need to be to achieve its particular purpose. Some rights, like merchandising, ParentCo might wish to retain, so that it can coordinate an overall strategy and grant merchandizing licenses that combine all of the assets from multiple seasons and multiple SPPCs.

Check out our related 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

Learn more about our Services:

Film & Television
Music
Interactive Digital Media
Software
Legal Support Services
International Services

Updated to November10,2021

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 free 15 minute Discovery Call please feel free to Contact Us.

FACTOR: Emergency Support Funding

inkline_admin — Wed, 25 Aug 2021 14:17:36 +0000

FACTOR: Emergency Support Funding – Introduction

Are you a musician who has been negatively affected by the COVID-19 pandemic? Or perhaps you are a concert promotor or music festival that hasn’t been able to host a live music event in many months?

If the answer is yes, you and many other individuals and businesses in the live music sector who have been affected by the ongoing pandemic may be able to apply for FACTOR’s new Emergency Support Funding program.

FACTOR (the Foundation Assisting Canadian Talent on Recordings) is a public-private partnership that supports Canadian musicians and Canadian music companies. Recently, FACTOR announced a new program to provide $50 million of funding to support Canada’s live music sector and Canadian artists affected by COVID-19. The funding is to be distributed via the Canada Music Fund (CMF) from 2021 through to 2022.

Who do they assist?

The new funding aims to support the Canadian music industry, which continues to face headwinds due to the COVID-19 pandemic and public health directives that limit public gatherings. The funds will be available to many entities which have historically not been eligible to receive CMF funds. FACTOR seeks to use the funds to promote a diverse Canadian music industry, to improve competitiveness (both at home and abroad) and to contribute to Canada’s creative economy.

The new funds will be distributed through three distinct “streams”, each of which are described below:

Stream 1

An extension of the Emergency Support Fund established in 2020-2021, half of the new funding ($25 million) will be distributed in Stream 1. FACTOR will distribute the funds to the anglophone market, and Musication will distribute the funds to the francophone market.

Stream 2

Stream 2 is aimed at resuming live, in-person concerts. Specifically, funding is targeted towards infrastructure improvements for health and safety for in-person concert venues, supporting the presentation of hybrid concerts (in-person and online streaming), and the presentation and promotion of Canadian artists’ live performances to help rebuild audiences. $20 million will be available for distribution under Stream 2.

Stream 3

Stream 3 targets Canadian artists, with the objective being to ensure that a level of stable funding for artists is maintained.

FACTOR: Emergency Support Funding Eligibility

To receive FACTOR funding, applicants must meet the following eligibility criteria:

Artist-entrepreneurs. A Canadian artist-entrepreneur must:

be active and have released an eligible Canadian sound recording (individual title or collection of titles) after April 1, 2018;
have performed on stage in 2019 or in 2020 and incurred commercial expenses in connection with such performances (e.g. hiring musicians, service contracts to support music activities, etc.); and
control and administer their own touring rights, directly incur tour expenses and receive revenues through an entity that is fully and owned and controlled by the artist.^[1]

Artist Managers & Booking Agents. Artist managers and booking agents must show that:

at least 50% of revenue from the last fiscal year completed prior to March 2020 came from music-related activities connected to Canadian artists; or
at least 50% of the artists on their roster are Canadians.

Concert Promoters. Concert promoters must show that:

at least 50% of revenue from the last fiscal year completed prior to March 2020 came from music-related activities connected to Canadian artists.

Live Music Venues. Live music venues must:

be permanent spaces with infrastructure for musical performances, such as a stage, sound and lighting systems;
show that at least 25% of 2019 programming was live musical performances featuring original commercial material (musicals, tribute bands, dinner-theatre, charity or corporate shows are not considered to be “commercial” and are therefore not eligible); and
show that at least 50% of 2019 musical programming was performed by Canadian artists.

Music Festivals. Music festivals must show that:

at least 50% of programming in its last pre-pandemic edition was musical performances by Canadian artists.

Service Companies. Companies supplying services to the music industry must:

show that at least 25% of activities for the last fiscal year prior to March 2020 were activities related to musical performances in Canada and, of these activities, at least 50% were provided to Canadian artists (i.e., their services allow Canadian artists to perform on an indoor or outdoor stage); and
employ technicians with expertise in the production of live music events (e.g. technicians who work on lighting, sound, stage management, machinery, staging, etc.).
for freelancers specifically:
- be incorporated;
- have had commercial expenses in 2019 (e.g. fixed operating costs, salary, etc.); and
- not eligible for the Canada Recovery Benefit (CRB).

On the website there is a list of ineligible applicants, which includes foreign-owned companies, service companies that specialize only in the sale/rental of staging equipment, radio and television broadcasters that deliver streaming services, venues with capacities greater than 3,500 and venues that associate with cities, municipalities or educational institutions.

Financial Assistance

The financial assistance available in this fund aims to support operating and administrative costs, promotion, and the growth of Canadian live music activities. Financial assistance may not be used to cover lost revenue or expenses already covered by government support. Financial assistance may be used for the following expenses:

salaries and benefits, professional and artist fees;
administration expenses;
fixed operating costs (e.g., rent, utilities, insurance);
production and promotion costs related to live music events; and
other costs within FACTOR’s discretion that are related to live music events.

Eligible expenses must be incurred between April 1, 2021 and March 31, 2022.

Applications and Deadlines

Applications for FACTOR funding must be made through the online application portal on FACTOR’s website.

As part of their application an applicant will need to include:

a report on activities carried out;
a financial report of eligible expenses and revenues;
a report that demonstrates that the applicant meets COVID-19 public health and safety requirements; and
other statistical information specified in the application form, such as jobs maintained by the company.

The next deadline to apply is September 2, 2021, at 5pm EST.

FACTOR: Emergency Support Funding – Conclusion

If you have further questions about FACTOR or its new fund, we encourage you to visit its website or to reach out to an entertainment lawyer.

Footnotes:

Note: we have contacted FACTOR for clarification on these requirements, what it means to control and administer ones own touring rights as well as whether an artist without an GST/HST number can register now to become eligible for the fund. We will update this blog when we have heard a response ↑

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Check out our related Blog Posts:

Learn more about our Services:

Film & Television
Music
Interactive Digital Media
Software
Legal Support Services
International Services

Updated to August 24,2021

Author: Michael Duboff, Entertainment Lawyer

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 free 15 minute Discovery Call 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.

Bell Fund: Short-Form Digital Series (Fiction and Non-Fiction) Program

inkline_admin — Fri, 18 Dec 2020 15:00:39 +0000

Bell Fund – Introduction

Next in our ongoing series highlighting funding opportunities for digital creators we’re going to take a look at the Bell Fund.

What is the Bell Fund?

The “The Bell Fund”, is a CRTC certified independent production fund that provides funding for cross-platform digital media and TV content. The Bell Fund has offices in Toronto and Montreal and provides support to Canadians from coast to coast.

What is the Short-Form Digital Series Program?

This Program provides production financing for short form digital series. In 2020, the Bell Fund issued changes to its Short Form Digital Series Program. Most notably, “fiction” and “non-fiction” were merged. There are two opportunities for producers to apply in a year.

Bell Fund – “Fiction”:

Eligible genres of programming include scripted drama, comedy and children and youth programming (excluding animated series), being produced as an ongoing series.

Bell Fund – “Non-Fiction”:

Eligible genres of programming include factual, documentaries and lifestyle programming, and children and youth programming (excluding animated series), being produced as an ongoing series.

Exclusions:

Check the guidelines carefully to ensure that your content is eligible. Excluded content includes (but is not limited to) vlogs, user generated content, news, current affairs, sports, and film and tv convergent content. The Bell Fund encourages producers to read the FAQ’s and contact them if they will require clarity.

Length:

The maximum episode duration for short-form digital series has also been increased from 15 to 20 minutes per episode. Six episodes remains as the minimum requirement.

How Much Funding Can I Receive?

Funding is available as a non-repayable grant of 75% of the costs of production up to a maximum of $150,000. Production costs that are eligible to be covered include standard digital video production costs but not the costs of implementing the Discoverability Plan (which includes the strategy, activities, timelines and measurement methods planned to identify and build an audience and monetize the series).

Evaluation of the Discoverability Plan will take place alongside evaluation of the application. If the application is approved for funding, the producer may be eligible to receive up to $50,000 towards the implementation of the Discoverability Plan based on an approved budget.

What Productions Can Qualify?

Funding Qualification Requirements:

The production cannot be broadcast for at least 12 months following its release on a digital platform.
Principal photography cannot have begun prior to the application deadline.
A teaser/trailer of the production (maximum of two minutes) must be provided with the application. Make sure to impress them! From our conversations with the Bell Fund team, the teaser should communicate the tone and feel of the project. According to list of very helpful FAQs, the teaser should be professional quality, and they are looking for “quality premium content.”
At the time of the application the production must be able to show that at least 10% of the budget is financed in cash by a third party (there must at least be a commitment in writing). Third parties include provincial or federal agencies (including tax credits). Note that for provincial and federal tax credits, applicants must demonstrate eligibility and estimate a maximum of 90% of anticipated tax credits.
The copyright of the production must be owned, optioned or controlled by the applicant.

Platform/Channel Requirements:

In addition to the requirements described above, the Bell Fund requires the production to have a license agreement or meaningful commitment letter from one of the following at the time the application is made:

An online service owned, controlled and operated by a Canadian, licensed programming undertaking (eg. OUTtvGo, APTN lumi, Savoir média) including operating as a Hybrid VOD service (eg. Crave, Club illico).
A digital platform that features Entertainment Programming and is accessible to Canadians (Canadian or Foreign owned).
Funding decisions are generally made 6-10 weeks after the application deadline…good luck!

Bell Fund – In Closing

Also, be sure to read the Application Components, including the Project Details form and Discoverability Plan, which includes a detailed description of producer driven, audience-focused activities (10-page max) with a budget.

Recent Blog Posts:

Online Concert Licensing and Royalties – Part 1

Online Concert Licensing and Royalties – Part 2

Termination Clauses in Employment Contracts

COVID-19 Killed My Tour – Rights and Obligations – Part 1 – Venues

COVID-19 Killed My Tour – Rights and Obligations – Part 2 – Partners

Updated to December 18, 2020

Edwards Creative Law is a boutique law firm provides legal services to Music, Film and TV, and Interactive Digital Media industry clients. For more info and blogs, please visit www.edwardslaw.ca

* This article 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.

Annual General Meetings in Canada and COVID-19

inkline_admin — Thu, 16 Apr 2020 17:43:15 +0000

Annual General Meetings in Canada and COVID-19 – Introduction

Annual General Meetings in Canada (“AGM”) are a requirement for both Federal and Provincial Corporations. Physical distancing in the time of COVID-19 has left many Ontario corporations wondering how and when they should proceed with their annual meeting. Generally, the Business Corporations Act (Ontario) (“OBCA”), requires an AGM to be held within 15 months of the last preceding AGM.

Ontario Corporation Legislation

Extensions of Time

To take pressure off Ontario corporations to hold an AGM the government of Ontario enacted O. Reg 107/20. Effective March 17, 2020, if the deadline to hold an AGM falls within the period of the COVID-19 declared emergency, then the deadline to hold an AGM is extended to 90 days after the end of the emergency. For corporations whose deadline to hold an AGM falls within 30 days after the end of the emergency, then the deadline to hold an AGM is extended to 120 days from the end of the emergency.

Alternatives to In-person Meetings

In addition, O. Reg 107/20 provides that all meetings of directors and shareholders, including the AGM, may be held by telephone or electronic means (which would include video conferencing) and explicitly overrides any provision of the articles or by-laws of an Ontario corporation requiring Annual General Meetings to be held in-person.

Federal Corporation Legislation

Timelines for Annual General Meetings in Canada

What about federal corporations incorporated under the Canada Business Corporation Act (“CBCA”)? Corporations Canada recently stated that Canada corporations must still observe the statutory timelines, which require an AGM to be held within 15 months of the previous AGM and no more than six months after the corporation’s financial year-end.

Amendments to Corporate By-Laws

Further, the CBCA only permits virtual AGMs if the corporate by-laws (or, in more limited circumstances, the articles) permit the corporation to do so. For Canada corporations whose articles or by-laws prohibit virtual meetings or are silent on the issue to comply with their obligations under the CBCA and the public health requirements of social distancing, the board of directors should amend the by-laws to permit virtual meetings, with the change effective until the next meeting of shareholders or members (when the change can be confirmed or rejected by the shareholders).

Annual General Meetings in Canada and COVID-19 – Conclusion

The other option for Canada corporations is to delay the AGM, which not-for-profits can do by applying to Corporations Canada. Unfortunately, business corporations need court approval.

Check out our related Blog Posts:

The Radio Starmaker Fund’s Orion Program For BIPOC Artists

Online Concert Licensing and Royalties – Part 1

Online Concert Licensing and Royalties – Part 2

P2 Work Permits for Musicians – Legal Requirements For Canadians Performing in the U.S.

COVID-19 Killed My Tour – Rights and Obligations – Part 1 – Venues

COVID-19 Killed My Tour – Rights and Obligations – Part 2 – Partners

Author: Byron Pascoe, Entertainment Lawyer

COVID-19 Killed My Tour – Rights and Obligations – Part 2 – Partners

inkline_admin — Thu, 19 Mar 2020 22:16:24 +0000

Cancelled Tour – Rights and Obligations:

We all want to limit health risks at home and in the communities that we visit on tour. As we consider the effects of COVID-19 on the live music industry and our individual roles, here is part two of a series of blogs to address some considerations likely on your mind, and a few others you might not have thought of. Click here for part one.

What are your obligations to others?

Does your agreement with your band require everyone to share expenses, even if the expected revenues are not generated? For our band agreement blog, click here.
Does your agreement with your side artists allow you to cancel for any reason, including if the gig is cancelled? Are any of those agreements “pay or play” – which require you to pay your side artist whether they play or not?
If you are paying a manager a monthly consulting fee that you expected to be able to earn from touring, do you have any clauses in your agreement that protect you if the tour is cancelled? For our management agreement blog, click here.
How does your arrangement with your booking agent deal with a crisis such as this?

Plan Ahead:

It is preferable to formalize your arrangements with your professional partners early in the relationship, rather than later. This includes provisions that cover both the successes and what happens when things don’t go as planned.

When to Waive Rights:

If you decide not to insist on enforcing all of the protections in your agreement, you may want to give some of them up – to “waive” some of your rights. Before waiving rights, be sure that you aren’t unintentionally waiving other rights as well. Make sure your waiver is clearly stated and that your agreement includes a standard waiver clause that specifically allows you to waive an entitlement once, but not be required to continue waiving that entitlement in future. For example: “the failure of any party to enforce any provision of this agreement shall not be considered as a waiver or a limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this agreement…”.

Stay safe and best of success finding creative ways to interact with your fans and make a living until we get through this crisis together.

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Recent Blog Posts:

COVID Killed My Tour – Right and Obiligations – Part 1 – Venues

Online Concert Licensing and Royalties – Part 1

Online Concert Licensing and Royalties – Part 2

Termination Clauses in Employment Contracts

How to Pitch to a Broadcaster

Quitclaims – A Creative Legal Tool

How Can and Entertainment Help?

Regarding music law, Byron Pascoe works with musicians, producers, managers, and music companies to assist with record label agreements, publishing contracts, distribution deals, producer agreements, etc.

Edwards Creative Law is a boutique law firm provides legal services to Music, Film, Animation, TV, Digital Media, Game, and Publishing industry clients. For more info and blogs, please visit www.edwardslaw.ca

Force Majeure – What you Need to Know

inkline_admin — Thu, 19 Mar 2020 22:15:34 +0000

Force Majeure & Current Events:

We all have many questions as we grapple with the sweeping effects of COVID-19 on our professional and personal lives. Many may find it difficult or impossible to perform their contractual obligations given the restrictions imposed in response to the outbreak. If COVID-19 makes it impossible for you to perform your contract on time, or at all, consider invoking the force majeure clause.

Canadian Contract Law:

In contract law, force majeure refers to events that are out of the control of the parties and that may make performance of the contract difficult or impossible. The underlying principle of a force majeure clause is that no party to a contract should be held to its obligations if performance is prevented or delayed by events that are both unforeseeable and beyond that party’s control. If you are unable to perform your contractual commitments as a result of the COVID-19 outbreak, a force majeure clause may relieve you of some or all of your obligations.

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Clause Application:

A force majeure clause typically starts with a list of specific events – for example, natural disasters, such as earthquakes, hurricanes and tsunamis as well as epidemics, quarantines and government shutdowns. If the parties clearly allocate the risk of a specified event, as an event that relieves the parties of their obligation to perform, even if it was foreseeable, it is likely to be enforced by the courts.

A force majeure clause typically ends with a general statement of the type of events (“Act of God”, “unforeseen”, “unavoidable”, etc.) that can be invoked to justify a party’s failure to perform. Even if a specific event is not listed, or the contract does not contain a force majeure clause, a court may still relieve a party of its obligations if the event was unforeseeable and beyond the party’s control.

Additional Resources: Thomson Reuters

COVID-19 Killed My Tour – Rights and Obligations – Part 1 – Venues

inkline_admin — Thu, 19 Mar 2020 22:12:22 +0000

Tour – Rights and Obligations: Introduction

Tour – Rights and Obligations. We all want to limit health risks at home and in the communities that we visit on tour. As we consider the effects of COVID-19 on the live music industry and our individual roles, here is part one of a series of blogs to address some considerations likely on your mind, and a few others you might not have thought of.

Your rights and obligations related to the venue

Do you have a written agreement with the venue, either as a formal agreement or an email exchange?
If you were already paid a guarantee, what would give the venue the right to demand part or all of it back? If the guarantee was not paid, what would give the venue the right to withhold or reduce the payment?
Is there a cancellation policy? Does it give the venue the ability to cancel your show, without liability, a certain amount of time before the show takes place? What if the show needs to be cancelled for a reason outside of the venue’s control? For our blog on Force Majeure, click here.
What if the venue insists on the show proceeding but you don’t want to perform due to health concerns?

Tour – Rights and Obligations: Where There is an Agreement

If you have an agreement, some or all these considerations may have been settled. If your shows are months away, you may want to get these and other typical venue agreement deal points straightened out, to ensure there is a clear understanding with the venues on your tour.

Before you agree to the cancellation of a show, check your agreement to see if your entitlements are affected by whether you consent to the cancellation.

For part two of this blog, regarding rights and obligations with your partners, from your band to your manager, click below.

Recent Blog Posts:

COVID Killed My Tour – Right and Obiligations – Part 2 – Partners

Online Concert Licensing and Royalties – Part 1

Online Concert Licensing and Royalties – Part 2

Termination Clauses in Employment Contracts

How to Pitch to a Broadcaster

Quitclaims – A Creative Legal Tool

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How Can and Entertainment Help?

Canadian Music Law: Most Favoured Nations

inkline_admin — Fri, 21 Feb 2020 21:12:39 +0000

Your 3 Favourite Letters as a Canadian Musician: MFN

MFN stands for Most Favoured Nations. Most Favoured Nations, in the context of music, has nothing to do with the Olympics, Canada Day or international travel.

Within the music ecosystem, it means equality, essentially receiving the same treatment as others. Here are some examples of scenarios where MFN is helpful.

Performances

Let’s say your band is being hired for a gig along with other bands, and they offer you $250 for the performance. If you want to be paid the same amount as the other performers, you can ask for your payment to be on a “Most Favoured Nations” basis. If the venue or promoter agrees that you will be paid $250 on a MFN basis, it means that if they pay another performer $300, they must also pay you $300 (instead of $250).

What if you are one of the opening acts, and the headliner will be paid significantly more than $250? In this case, you can ask that your payment be $250 on a “Most Favoured Nations Basis” with the other opening acts. The outcome being: if the headliner gets $1,000 and the other opening acts get $250, then you will be paid $250. However, if the headliner gets $1,000, and one of the other opening acts get $300, then you should also be paid $300.

Performances – Side Players

If you’re a side player for a band, and the band leader pays you (along with other side players) to play gigs. In order to ensure that other players aren’t paid more than you, it is possible to ask to be paid on an MFN basis with the other side players. Therefore, if the bass player is paid $200, you (the drummer) should be paid $200 on an MFN basis.

Music Placements

If you have the opportunity for your song to be placed in a film or television series, you should be told how much is available to pay you for the right to use the master and composition. Ensure that you’re paid the same as the rights holders of the other songs in the film or series by requesting that your fees be MFN. An example of this would be if you are paid $1,000 for the master use rights to use the master recording and synchronization license to use your composition, and another musician is paid $1,100 for the right to use their master and composition, then you are contractually entitled to receive the extra $100 for the use.

What happens if your music is being requested for a TV show, but the show has a very popular musician’s song as the theme song? It might be reasonable that the theme song not be within the scope of the music that would increase the price you’re paid.

Master Rights

If you own the master rights in a recording of a song written by someone else, and if you’re offered $400 to have your master be used in a film, you can ask that your fee be $400 on an MFN basis with the synchronization license paid for the rights to use the composition. This request is also relevant if you own the master rights in a recording of a song you wrote, but the publishing rights are controlled by your publisher. In that case, if your publisher can get $750 for the rights to use the composition, and if you agreed to provide the rights to use your master for $400 on an MFN basis with the synchronization license, then you would be paid $750 instead of $400 for the master use rights.

Management Agreements

If you’re starting to work with a manager, and she requests that you pay 20% commission, but you think other artists pay her 15%, you could request that the commission percentage that you pay is on an MFN basis with her other artists. As such, if other artists pay 15% in commission, then you would contractually be required to pay a 15% commission instead of a 20% commission.

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Producer Agreements

If you’re producing one song for an artist who has an EP of 6 songs, and are offered $500 to produce that song, in order to ensure that you’re being paid the same as the producers on that EP, you can ask to be paid $500 on a MFN basis (with the other producers on the album on a per song basis). If someone else gets $750, then you would contractually be entitled to that amount as well.

Challenges with MFN

Just because someone is contractually required to pay you on a “Most Favoured Nations Basis”, doesn’t mean that they will tell you they paid someone else more than you, and that they are in turn contractually required to pay you more. One way to find out if you should be paid more than you were initially promised or paid, is to ask others what they were promised or paid. Back to the example of being paid $250 for a gig on a “Most Favoured Nations Basis” with the other opening acts, ask the other openers what they’re being paid. If someone else is being paid $300, you should be paid $300 instead of $250. If another opener is being paid $175 on an MFN basis, they should be paid $250 because you’re being paid $250.

In Closing

Getting MFN is more commonly used in music publishing situations. This being said, if you want MFN you can still ask for it. If you don’t get it, decide whether the offer is worth it. If someone denies providing MFN, it may be that they have something to hide. They may hide the manner in which they compensate others (as compared to yourself) or they may not want other deals to impact your fees.

The other way to get better fees is to ensure you’re in high demand!

Recent Blog Posts:

Online Concert Licensing and Royalties – Part 1

Online Concert Licensing and Royalties – Part 2

Termination Clauses in Employment Contracts

COVID-19 Killed My Tour – Rights and Obligations – Part 1 – Venues

COVID-19 Killed My Tour – Rights and Obligations – Part 2 – Partners

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MATH is a Musician’s Friend!

inkline_admin — Thu, 18 Jul 2019 20:20:07 +0000

Math is a Musician’s Friend

Math is a Musician’s Friend. Well, math should be a musician’s friend. Unfortunately, like many people, some musicians are afraid of math. This fear ends NOW… or at least at the end of this article. Get excited.

“Knowing math, much like knowing ANYthing else, is empowering. The truth is, making a career out of music is just as much about the business as it is about the art itself. “Being business savvy involves a degree of math, period,” says Vanessa Vakharia, Founder/CEO of The Math Guru, who is also a founding member of Goodnight, Sunrise, an indie rock band from Toronto.

Musician or Mathematician

Numbers are everywhere in music, both on the creative side of musical creation and on the business side, and Vanessa agrees.

“We have this whole obsession with categorizing. We’re obsessed with the idea that there’s such a thing as an “artsy” person and conversely a “math” person. That the two are rarely able to co-exist. But that’s all BS. We’re all just people, capable of learning and mastering absolutely anything. A successful musician doesn’t need to be able to solve quadratic equations. But entering the music business (yes, business!) with an attitude that math is to be feared, simply makes no sense!” exclaims Vanessa.

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Math Pays off… Literally

When Vanessa and her band Goodnight, Sunrise got the opportunity to open for Bon Jovi at Air Canada Centre, I worked with Vanessa and her band mate Dave Kochberg to calculate the SOCAN royalties that would be paid to them for opening the show. Those are the kinds of numbers you want to be adding!

“Math is used in calculating SOCAN royalties, in deciding whether to fly out West to tour or to rent a camper van, in deciding which shows to take and which to say no to, in deciding how much to invest in recordings… the list goes on. Many musicians have been labelled “creatives” early on and as a result think that they can’t “do” math. But the truth is, all that’s required to really understand the industry is simple, basic math – and any indie artist can do that!” confirms Vanessa.

Vanessa started the list and here are more examples:

Commissions

Paying 15% to someone, from a manger to a publishing administrator, has more meaning when you know which revenue sources should be added and are then multiplied by 15%.

Recoupable Expenses

If you’re a producer and are being asked that your fees be recoverable, do the math to see how much music sales and licenses must be generated before you start to get paid, if 0%, 50% or 100% of your fee is recoverable. You can then use this information to negotiate a more reasonable set of terms.

Paying Producers

If you’re an artist and the producer that you’re engaging wants to get paid half up front and half upon delivery, calculate your cash flow to ensure you have the ability to pay. If you need to stagger the payments to ensure you have the cash, propose something reasonable that’s consistent with your ability to pay the producer. Consider all your revenues and expenses, including when you get paid, and when other payments (including rent) are due.

Calculating Time Between Reports

If you’ve been promised reports from your distributor or publisher every six months, for example, plan your payment commitments to others accordingly. Try to reduce the time in between reports. If you get a report every month, you’re in a much better spot from a cash flow perspective once payments become steady.

Advances

Let’s say you engaged an artist to be a featured artist on your recording. You agreed that she’s entitled to a percentage of your master royalties, and she wants an advance. If you want to give her an advance, you can calculate what you think she will realistically receive and ensure that the advance you provide her isn’t more than the royalties you plan to pay her over time. On the flip side, if a label is confident you will reach certain sales, you can calculate how those sales should translate into royalties for you in order to comment on whether the advance provided is enough.

Album Purchases

If you are entering into a record label deal, and the label offers you the opportunity to buy physical albums for a certain dollar value, related mathematical questions include: how much money the label is spending on the album pressing, whether the difference between what you pay the label and the label’s costs go to reduce your financial debt to the label, and what price you would otherwise be able to get if you were to order CDs or vinyl on your own.

Controlled Composition Clauses

Staying on this record label mathematical rant; suppose the label says that compositions you write and control (Controlled Compositions) will earn you a mechanical royalty that is 75% of what they should be paying you. Also, they are paying you mechanical royalties for ten songs instead of however many more songs are on your album. If most of your songs are co-writes, and the other writers don’t accept a reduction in mechanical royalties… do the math – you will need to know if you will be responsible to pay more in mechanical royalties to your co-writers compared to the mechanical royalties you receive from the label to share with your co-writers. There are some alternative strategies in this situation, but the key point is to ensure you keep an eye on the mechanical royalty mathematical formula.

SoundExchange

Does your producer want 15% of the featured performer royalties paid by SoundExchange? Consider how this will impact the percentages expected by everyone else in the band.

Notice Provisions!

I got excited about this one. In many music agreements, (management, distribution, etc.) there are timelines that can be automatically extended. For example, if the agreement is not terminated by the parties within a certain amount of time from when the agreement’s term would otherwise end. Count the days correctly! Always give notice well in advance of the deadline just in case. If you wait until what you think is the last minute, you may have the days counted incorrectly. Are we counting days or business days? When negotiating timelines, it’s preferable to have the right to end a term close to when the term would end. As opposed to being required to give notice upwards of 90 days before the end of the term.

Publishing Administration

Does it make sense to give a publishing administrator 15% of all your global publishing royalties? Take a look at what you are getting on your own in Canada, and what you are leaving on the table outside of Canada.

Capping Fees

Use percentage and dollar value caps to limit what other people can spend if you’re going to be responsible for those fees. This is a relevant consideration for management, publishing, label and other agreements.

In most of my music law presentations I tell attendees that if they want to be a musician, that math must be your friend. You can come see this in action on Saturday, June 1 at Spaceman School of Music (390 Gladstone Avenue) at 1pm as I’ll be giving a music law presentation. Contact school@spacemanmusic.com for tickets and other math and non-math details.

MATH is a Musician’s Friend!!

—

Canada Day: The Perfect Day to Support Canadian Content (5th Edition)

inkline_admin — Sat, 29 Jun 2019 23:52:16 +0000

Since 2015, I’ve been sharing suggestions of how to support Canadian content on Canada Day – including our nation’s films, music, television programs, books, and more.

While every day of the year should be spent consuming #CanadianContent, Canada Day is the perfect day to celebrate it, be proud of it, and support the creation of more of it.

Films

The sixth annual Canadian Film Day on April 17, 2018 marked an important milestone: the 100th anniversary of Canada’s first blockbuster and oldest surviving feature film, Nell Shipman’s Back to God’s Country.

The big winner at the Canadian Screen Awards this year was A Colony.

Click here for a list of the latest CSA nominees and winners.

For those who look to TIFF for the best around the world and in our own backyard, TIFF’s new series – Canada’s Top Ten – which provides each feature film the opportunity to have a full theatrical run at TIFF Bell Lightbox throughout the year. The Freaks, Firecrackers, and Giant Little Ones were at the top of the TIFF Canadian class.

While not all Canadians at the Oscars were there representing Canadian films, Canadian individuals were well represented at the Academy Awards again this year. The most stacked category, with three nominations, was the Best Animated Short Film category, with Bao picking up more votes than fellow Canadian considerations Animal Behaviour and Weekends.

Canadian Gordon Sim was nominated for the third time in the Best Production Design category, this time for Mary Poppins Returns. In the Best Live Action Short Film category, the two Canadian representatives are both from Montreal – Jeremy Comte for Fauve and Marianne Farley for Marguerite. In the Best Sound or Sound Mixing category, we had two horses in the race, with Craig Henighan on the ROMA team, who lost to Paul Massey who shared the honours with his team for Bohemian Rhapsody.

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Music

Canada had yet another big year on the international stage, even if one of the biggest news items was Céline leaving the Vegas stage.

Picking up an award was Toronto R&B artist Daniel Caesar, winning his first of many future GRAMMYs, in the category of best R&B performance award for his H.E.R. collaboration, Best Part. Canada had five classical nominees, with James Ehnes winning for best classical instrumental solo. BC’s Diana Krall didn’t convert either of her two nominations into a win, including as best pop duo/group performance unsurprisingly went to Lady Gaga and Bradley Cooper for their A Star is Born song Shallow. Also, Alberta’s Young Spirit got on the short list for best regional roots music album.

At the GRAMMYs, Drake won best rap song for God’s Plan, and had six other nominations. He wasn’t alone representing Canada. Shawn Mendes performed his In my Blood anthem with Miley Cyrus, and was nominated, for his first and second time ever, for song of the year and pop vocal album of the year for his self-titled third album. While he didn’t win any awards, according to Drake’s speech, Shawn among others are already winners for having a devoted fan base.

For future world stage representatives of the north, the artists whose albums are among the top 40 in Canada nominated for a Polaris Prize is always a great place to start, and this year the long list includes our clients Clairmont The Second for his album Do You Drive? and Kaia Kater for her album Grenades.

Last year’s winner, Jeremy Dutcher, continues to take Canada and beyond by storm with his magical Wolastoqiyik Lintuwakonawa album.

Lastly, two of the many other Canadians making a mark in hip hop, now the most consumed musical genre, range from Surrey’s Merkules to Ottawa’s Night Lovell.

The Small Screen

Canadians continue to produce interesting and engaging programming for smaller screens.

Canadian series looking to make their mark from coast to coast and beyond include Cardinal, The Launch (which this season featured our clients T. Thomason, Michelle Treacy and Vi), Vikings, Coroner, Unspeakable, Cavendish, Street Legal and Diggstown (of course legal shows needed to be mentioned).

According to Numeris, in mid-June, 2019, apart from the basketball and hockey playoffs among the most watched series by Canadians were Canadian-made HGTV’s Island of Bryan (featuring builder Bryan Baeumler and his wife and designer Sarah Baeumler) and Global’s Private Eyes

Thanks to platforms like CBC GEM, digital content companies like iThentic and YouTube aggregators such as KindaTV, we’ve been given content including The 410 and My Ninety Year Old Roommate (CBC GEM), The Nations on iThentic, and Barbelle (catch both seasons of our clients on KindaTV).

Canadian YouTubers also continue to take the largest video platform by force including Lilly Singh (@iisuperwomanii) who is taking over Carson Daly’s late-night hosting slot on NBC, cosplayer and gamer Azzy (@Azzyland – who by the way is represented by Vancouver-based digital entertainment company BroadbandTV – which is the third largest video property in the world – in terms of unique viewers – following only Google and Facebook), rapper and general crazy guy Wolfie (@WolfieEnt), video game commentator Evan Fong (@VanossGaming), crime and health statistics analyst and nail art aficionado Cristine Raquel Rotenberg, (@simplynailogical), fashion and beauty expert Lauren Kobayashi Riihimaki (@LaurDIY) and the best spot for animated popular children’s songs (@supersimplesongs)

Literary

The 2018 Giller Prize Winner was Esi Edugyan, for the second time, this time for Washington Black.

The Canada Reads 2019 winner was By Chance Alone by Max Eisen, defended in this competition by science journalist Ziya Tong.

BC’s Kate Harris won the 2019 RBC Taylor Prize for her book Lands of Lost Borders: Out of Bounds on the Silk Road, published by Knopf Canada.

Combining multiple media but in only audio form is of course podcasts which are becoming more and more popular each year, and from the audience-funded Canadaland focusing on Canadian media, news, current affairs, and politics, to CBC’s Quirks & Quarks and Someone Knows Something, there’s something for everyone.

Enjoy the content, and congratulations to our country’s creators on another great year of creating content for audiences near and far.

For Canada Day 2018’s Canadian content suggestions, click here.

For Canada Day 2017’s Canadian content suggestions, click here.

For Canada Day 2016’s Canadian content suggestions, click here.

For Canada Day 2015’s Canadian content suggestions, click here.

Edwards PC, Creative Law is a boutique law firm provides legal services to Music, Film, Animation, TV, Digital Media, Game, Software and Publishing industry clients. For more information and blogs, please visit www.edwardslaw.ca

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

inkline_admin – Edwards Creative Law

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Assigning Concept Rights in Canada – Introduction

What is a Concept?

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Granting Rights

Licensing Considerations

Assigning Concept Rights in Canada – Conclusion

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FACTOR: Emergency Support Funding

FACTOR: Emergency Support Funding – Introduction

Who do they assist?

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Stream 1

Stream 2

Stream 3

FACTOR: Emergency Support Funding Eligibility

Artist-entrepreneurs. A Canadian artist-entrepreneur must:

Artist Managers & Booking Agents. Artist managers and booking agents must show that:

Concert Promoters. Concert promoters must show that:

Live Music Venues. Live music venues must:

Music Festivals. Music festivals must show that:

Service Companies. Companies supplying services to the music industry must:

Financial Assistance

Applications and Deadlines

FACTOR: Emergency Support Funding – Conclusion

Footnotes:

Note: we have contacted FACTOR for clarification on these requirements, what it means to control and administer ones own touring rights as well as whether an artist without an GST/HST number can register now to become eligible for the fund. We will update this blog when we have heard a response ↑

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Length:

How Much Funding Can I Receive?

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Platform/Channel Requirements:

Bell Fund – In Closing

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