Entertainment Law: Why Creative Professionals Need an Attorney

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As a filmmaker, writer, musician, photographer, visual artist or other creative professional, your core business is developing your craft and your work.  But the business of being a creative professional requires the assistance of attorneys who are knowledgeable about your creative work and industry.  An attorney with this background can assist you with certain key legal services that your business will need.  The three most common areas of legal services creative professionals need are outlined in this article.

1.         Business Formation

In order to protect your personal assets (like your personal bank accounts, house, cars, etc.), you should create a business entity for your professional expenses, liabilities, and income.  This can range from a limited liability company to numerous forms of corporations.  An attorney can help determine what type of entity is best for your exact needs and assist in forming the chosen entity.

For example, Jack is a photographer and begins selling his artwork online and in local coffee shops.  He doesn’t create a business entity and runs all of his business expenses through his personal bank accounts.  Jack enters into various contracts for equipment and supplies.  He is personally responsible for payments under these contracts.  In the middle of the year, Jack defaults on the payments.  Jack is personally liable for the debt. 

Jack should have created a business entity, like a limited liability company, in order to protect his personal assets from his business’s debts and liabilities.  Had Jack created a business entity and signed the contracts on behalf of his company, then the vendors and suppliers would only have access to the business’s funds to repay the debt, not Jack’s personal funds.

Additionally, if you are working with collaborators on your business, an attorney can develop an agreement where all of the parties agree to certain terms, decision-making processes, and ownership of the company.  While going into business with friends or longtime collaborators may be creatively smart, it can create problems down the line.  The best way to keep that friendship and collaboration intact is to have an agreement that outlines each person’s responsibilities to the company.

For example, Jack the photographer decided to work with Jill the filmmaker on a new documentary.  The documentary premiered at a film festival and won a cash prize.  Jill believes she is owed 50% of the cash prize, but Jack believes the money should be used to pay back the expenses of the documentary, which Jack paid.  Without an agreement on how money is distributed, Jill may run off with half of the cash prize, leaving Jack out all of the expenses of the documentary.  If Jack and Jill had signed an agreement that outlines how money is split and whether costs are recouped first, then they could have avoided this conflict and kept their relationship intact.

2.         Contracts and Agreements

Once the business entity is set up, then you are ready to begin conducting your creative business.  Contracts are critical to any business because they lay out each party’s responsibilities and rights.  Contracts keep each party accountable for their actions.  But, for the creative professional, contracts are critical because the work that is being created is valuable intellectual property.  A contract can assert who owns the intellectual property and how decisions are made with regards to using the intellectual property.

Every creative business must either draft or sign contracts such as:

  • Production Agreements
  • Publishing Agreements
  • Writers, Collaboration, Composer, Talent Agreements, etc.
  • Location Agreements
  • Depiction Agreements
  • Work Made for Hire Agreements
  • Financing/Investor Agreements
  • Agent/Manager Agreements
  • Licensing Agreements
  • Distribution Agreements
  • Options
  • Bill of Sales for Creative Works
  • Name and Likeness Releases
  • Union Agreements and Compliance

The specifics of your agreement will shift based on your artistic discipline, but no matter what kind of creative professional you are, your business needs contracts to hold those you are working with accountable to what was agreed to.  An attorney can assist you in drafting those agreements or can review and negotiate a contract you receive from a third party to make sure that you understand the terms and are protected from potential issues. 

If you will need to re-use an agreement numerous times, investing in an attorney to develop a standard contract that you can re-use, is a worthwhile expense.  For instance, Jack the photographer is venturing into portraits for families and children.  He needs an agreement to be used with all of his portrait clients that serves as a bill of sale for the prints or digital copies of the photos and a likeness release, but reserves his rights to the copyright of the photos.  An attorney can draft a contract for Jack that allows him to re-use the agreement for all of his portrait clients, making it an economical way for Jack to run his business while still using a legally binding agreement.

3.         Intellectual Property

As a creative professional, you are in the business of creating intellectual property.  Whether it is a film, a painting, a play, a book, or a photograph, creative professionals should actively protect their work by registering the copyright of the work.  While the creator of the work has copyright rights immediately upon creation of the work, there are numerous advantages to registering the work with the U.S. Copyright Office.  This is a fairly routine task with the assistance of an attorney.  Our Intellectual Property and Entertainment Law practice team can work within your budget to register your copyrights with the U.S. Copyright Office.

To learn more about copyright law, why a creative professional should resister a copyright, and how to provide proper notice of your copyright rights, check out this recent article entitled Copyright 101 for Businesses and Artists.

Beyond copyrights, creative professionals may have the need to register trademarks to protect important logos, slogans, company names, etc.  An attorney can assist you in determining what trademark assets are eligible for registration.  Check out a recent article entitled Top 5 Reasons You Should Register Your Trademarks to learn more about why trademark registration is an important component to protecting your intellectual property.

The work you create may need to be protected either by copyright or trademark registration.  Typically, an attorney will review your various creative works, discuss a protection plan for the works, and then execute and maintain that protection plan.  For creative professionals, your main business assets are the works you create and so protecting those assets is a high priority.

Conclusion

No matter what kind of work you create as a creative professional, you must consider the benefits of (1) creating a business entity to avoid any personal liability for liabilities of your business, (2) reviewing contracts with an attorney or requesting an attorney draft your contracts with your collaborators, and (3) protecting your intellectual property by proper federal registration.  An attorney can assist your creative business in these three critical areas to protect your personal assets, your business relationships, and your intellectual property.

If you wish to discuss your arts and entertainment legal needs, please contact Margaret T. Lund or Laura Lamansky, the authors of this article, or any of the other attorneys in the Intellectual Property and Entertainment Law practice team of Stafford Rosenbaum LLP. 

Copyright 101 for Businesses and Artists

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Introduction

You’ve created something original – a painting, a book, a manual, a graphic design, etc. – now what?  Whether you are an artist or a business owner, you have big plans for this original work, but you are not sure how best to protect the fruit of your hard work so that competitors do not use your work without permission or take credit for it.  This article will explain the basic copyright rights you currently have in your original work and how to best protect this asset.  

What is Copyright?

U.S. federal law provides copyright protection for original works of authorship from the moment the work is created in a fixed, tangible form. This means that if the work is independently created, has a minimal degree of creativity, and is written down, recorded or somehow preserved, it has immediate copyright protection.  As the old adage goes: as soon as your pen lifts from the paper, you have a copyright in the work you’ve created. 

What Works Are Protected?

A non-exhaustive list of works that can be protected include:

  • Literary works (books, manuals, etc.)
  • Musical works
  • Dramatic works
  • Choreography
  • Visual art (paintings, sculptures, drawings, diagrams, graphics, etc.)
  • Movies and other audiovisual works
  • Sound recordings
  • Architectural works

What Is Not Protected?

There are certain creations that are not protected by copyright law.  For instance, ideas are not copyrightable because they are not in a fixed, tangible form.  For example, if you have an idea for a new novel, the idea is not protected.  However, once you have expressed the idea in a fixed, tangible form and have written the new novel, it is protected by copyright law.  

Other items which are not protected include: titles, names, short phrases, and slogans.  These may be eligible for protection as trademarks.  For more information about trademarks, see this recent article here.

How Can I Protect My Original Work?

A copyright in an original work of authorship exists automatically once it is in a fixed, tangible form.  However, as the owner of this copyright, you can take steps to enhance its protection by registering the original work with the U.S. Copyright Office.

While registering your work is not mandatory, it is necessary if you wish to enforce your exclusive rights to the copyright through legal action.  Thus, we recommend registering any work in which the public will have access to the work.  Once the public has access to the work, it is more likely that an unauthorized user will infringe on your rights and you will need the full legal protections of registration.

Why Should I Consider Registration?

Here are some benefits to registering your original work with the U.S. Copyright Office:

  • Validity: Registration establishes evidence of the validity of the copyright and the information stated in the certificate when the registration is made before or within five years of publication.
  • Notice: Registration places the public on notice of your rights in your original work.  This can be very helpful in the event you must enforce your rights against someone who is using your copyrighted work without your permission.
  • Legal Action: Registration is a requirement if you wish to pursue legal action against an unauthorized user who is infringing on your rights.  Additionally, registration means you may receive statutory damages and attorneys’ fees, if you are successful in court.  Statutory damages are damages awarded without the need to prove actual loss.  Even if you wish to avoid court, this can be powerful leverage when attempting to negotiate a settlement with an opponent.

How Do I Create a Copyright Notice?

A copyright notice is a statement placed on the work which notifies the public that a copyright owner is claiming ownership of the work.  A copyright notice is not mandatory, but it is recommended.

A copyright notice consists of the following:

  • The copyright symbol “©”
  • The year of first publication or, if the work is unpublished, the year it was created
  • The name of the copyright owner

If William Shakespeare was alive and published Romeo and Juliet today, he would provide the following notice on the play: © 2019 William Shakespeare

This notice should be placed on the work to ensure that the public knows that the author is claiming copyright ownership.

Conclusion

Whether you are a business owner or an artist, you may have valuable copyrights which, in order to obtain effective legal protection, should be registered with the U.S. Copyright Office.  By registering your work, you may take legal action against unauthorized use of the work and are defending your right to ownership.  Without registering your work, you run the risk of someone claiming your work as theirs and losing valuable legal remedies.

If you wish to discuss your original works or any other intellectual property concerns, please contact David B. Billing or Laura Lamansky, the authors of this article, or any of the other attorneys in the Intellectual Property and Entertainment Law practice team of Stafford Rosenbaum LLP. 

Law clerk Joseph S. Beckmann assisted in researching and writing this article.