Enforcement of entertainment laws - Essay Example

Enforcement of entertainment laws 1.1Introduction Entertainment law refers to a combination of various traditional laws that focus on the provision of legal services to the players in the entertainment industry. The entertainment law combines various slaws such as company law, contract law, and sales of goods law. However, the main areas that the company laws address tend to overlaps highly with the intellectual property law. However, it also covers employment law, the contract law, the law of torts, the labor or employment law as well as the intellectual property (trademarks, and copyright law). It is also noteworthy that, artist just setting in business, or fully established in the entertainment industry should consider having an entertainment lawyer in addition to having proper knowledge of their rights as an artist. 2. Agency Law 2.1 Introduction In these modern days characterized by technology driven market place, there are many negotiations, and structuring a number of agreements for ringtones, digital downloading, digital content, P2P distribution, aggregations, web casting, and forms of API licensing. Some of the most successful music artists such as Beyonce Knowles require to record, perform, write and produce music entertainment that will augur well with music industry centric agencies with experience and expertise in advertising and promotion. Musicians need help and guidance through the music careers, and music agents need to negotiate contracts with these agents. Agents’ main role is to find work for the artist within the music industry, where they could be employment or booking agents. 2.2Compensation Agents earn a compensation for their services at between 5% and 15% of the artist gross earnings from bookings, engagement, or employment secured by the agent. The commission given to the agent may vary depending on the type of work, length of time, popularity of the artist, and state laws. Some state laws stipulate that agents and talent agencies must obtain licences before obtaining commissions, and may be charge a particular maximum amount. Before agents represent an artist, they have to sign contracts (Ronald, 2008). According to Harrison, (2007), attorneys usually assist the artists in handling any contractual negotiations on their behalf, to be certain that the terms of an agreement such as fees and duration are favourable to the artist. Talent agents can sometimes act as managers with no licence and experience, and may negotiate contracts such as recording, publishing, or merchandising contracts for the artist, is like practising law without a licence which can jeopardize the artist’s career. Contracts in the music entertainment industry can involve extremely complex legal issues such as a variety of rights, and usually have long term effects on the artist’s career. Conflict of interest may arise where an agent is being paid commission on the artist’s contract. This may make the agents focus on the advance money, at the expense of what they may assume as many details concerning the artist’s royalty calculations, publishing, creative control, production, merchandising, and other long term career issues of the artist. 2.3 Enforcement of entertainment laws State laws, such as California and New York require talent agents to obtain a licence as a form of the artist employment agency. The regulations are geared towards the agents to protect the artist, and they must obtain the licence from the State Labour Commissioner, and are subject to state regulation. The regulations include submitting fingerprints, maintaining a security bond, trust account, and accurate records, having their offices subject to inspection, and submitting their commission rates, and their form off contract approval by the labour commissioner. Adkins, (2004) argue that people who were acting as talent agents were subject to criminal liability, where they could be tempted to book a gig if they artist cannot obtain the services of a talent manager. The |California Act was not passed due to the issue of distinguishing between a talent agent and a personal manager. In 1982 significant amendments were added to the act such that a personal manager to act in conjunction with and at the request of a licensed talent manager with respect to an employment contract. The other amendment was that the activities of procuring, offering or promising to procure recording contracts for an artist shall not in itself subject to the person or corporation to regulation and licensing. The amendments were reviewed in 1984 and later incorporated in the California Talent Agency Act. 3. Company law 3.1Introduction Previously the record companies ruled the music industry, and any band or artist who needed to become big in the industry had to do anything to be signed by a recording company. The recording companies had the power and means to bring the artist to the national limelight. The recording companies can be a sole trader, partnership (limited partnerships or limited liability partnerships), registered company, public company, or private company. There are prerequisite legal processes to bring a corporation into existence. The incorporation may create an office for one person. Never the less, in most cases, the corporate bodies have a minimum of two members. The recording company must of a juristic personality that is different from the owners or shareholders. When the owners of the company infringe on any contracts, commit crimes, or commit tort in its activities, then it is the company that is liable for breach of contracts are any other such wrong doing. The company law is applied and useful to recording companies with issues relating to limited liability of investors, transferability of shares, taxation matters, separate property rights, raising capital and continuity (Frith, &, Marshall, 2005). 3.2 Enforcement The company law applies to music recording houses which are made and enforced by companies House, community interest company regulator, and the charity commission, depending on the type and objectives of the recording company. The company house provides guidance on incorporation of names, event driven filings, registrar’s rules and powers, annual requirements, strike off, dissolution, restoration, and restricting disclosure of the companies address. The institute of directors needs to clearly define some of the following issues pertaining to business information and advice: being a director, employment, finance, intellectual property, marketing and sales, strategy, and growth. The company law is applied through legislations such as the Partnership Act of 1980, Limited Partnership Act of 1907. Limited Liability Partnership Act of 2000 and Companies Act of 2006 The recording companies’ directors enable s the company law to be enforced by acting within his or her powers, promote company success, exercise independent judgement, reasonable skill, care and diligence, avoid conflict of interest, refuse third party benefits, and declare an interest in an existing transaction or arrangement. The company law is enforced by the disqualification of directors, and the removal or retirement of directors. The recording company can also be wound up, or ordered to pay company debts. The recording companies are finding it more difficult to survive due to technological development such as the internet. Artist can now use technology to get their music tom the target audience, as many of the artists are moving away from the recording companies. The paradigm change where artists are pairing with promoters to organise tours, which tends to put artist more and more before their fans. The internet has enabled file sharing which has dominated the music industry of late bringing many recording houses to their knees. A keen understanding of the music industry is importantly in the ever evolving entertainment world today. The influence of technology in protecting the celebrity brand of the artist is necessary, and that of protecting the privacy of their lives. In the delicate act of balancing the freedom of the press and expression, a law should be developed to ensure that the artist obtains the celebrity global status in many international territories. 4. Copyright Law/ licensing 4.1 Introduction The world is rapidly changing, and the music industry is not spared either. A close look into the industry over the recent years says volumes; everything has evolved. Consumers listen to music in different ways. They read, download, listen and discuss it among each other in a more intimate way, not forgetting the digital revolution sweeping the music airwaves. The copyright law was passed to take care of the affairs of authors, composers, and publishers from unauthorised uncompensated exploits of their public performances. In this modern US, today’s music industry there are organisations responsible for collecting performance fees on behalf of their members. They are BMI (Broadcast Music, Inc) ASCAP (American Society of Composers, Authors and Publishers and SESAC.This licensing organisations founded on the basis of collecting fees on behalf of creators. According to La Voi, (2004, p. 171) licensing entails the transfer of copyrights in part or whole, exclusively or none exclusively, from one entity to the other, in direct exchange for some benefits, mostly money. It is a concept theta not only exists in music but functions as the basis of agreement in any industry where intellectual property is involved. Therefore, in this context licensing exclusively refers to licensing of music and sound recordings. Any user of music who plays copyrighted musical works in public, and whose performances are not specifically exempt under the law, needs a license from BMI/ASCAP/SESAC or the members whose works the user wishes to perform. As an artist, licenses are needed from BMI /ASCAP/ SESAC to cover the music played at your classes, workshops, exhibitions, competitions, and dances throughout the year. 4.2 Enforcement Under U.S Law, all musical work undergoes copyright as soon as it is converted into any tangible medium of expression. The tangible mediums range from the CD, DVD, Cassette tape as well as available digital formats. The copyright is transferable from one person to the other. When Byonce, creates a single, she owns the copyright, an exclusive right to own the single. The right to use the single in any way is controlled by Byonce or her agents. When Byonce allows a gaming, or a movie producer to adapt the single. The copyright is not entirely transferred from Byonce to the gaming or producing entity, but they (licensee) sign a contract with Byonce the copyright holder (licensor). The contract clearly spells the rights being granted by Byonce, and the limits of this rights with respect to time ,not forgetting the terms and conditions. These licences enable the industry players to clearly and quickly communicate about the content and intended purpose of the contract. In several instances, a producer may pay money, this does not give them the full authority over that single, but a partial ownership bound by the contract until the contract expires Consequently, under work for hire, an employer has authority over the works. This happens by way of the employer signing a contract with an artist to produce a song, and thereafter the employer retains the copyright. This is exceedingly common because, the artists or as in most cases an agency or its client by virtue of contractual agreement. In such a case the artists only retains the moral rights to the works. 5. Contract law 5.1Introduction The contract law defines the powers and rights of the parties to a contract. For example, in entertainment law, the contract law defines what binds the artist and the contract. It outlines the powers that each party has and the right of each party thereby stipulation how damages to either party can be settled. For example, the contract law defines the powers that Byonce has and the rights that must be considered failure to which, she can sue for damages of breaches of contract. The contract law was initially mad a statute and enacted in the courts of law. The contract law is dependent n the jurisdiction and the jurisprudence of the era of practice. For example, the California law may be different with the UK laws. 5.2 Elements of the law of contract Contract laws have a number of elements that must be met for a contract to exits. The contract must have an element of offer, and acceptance, legal consideration, bargain, detriment and the intention to create a contract. In mutual acceptance or consensus ad idem and for one the contract must governed by offer and acceptance. Whereby the contractor or event management or entertainment Management Company offers an entertainment deal to an n artist through the lawyer, and the representative of the artist has the right to accept or reject the offers. Additionally the contract is governed by, considerations. Considerations constitute a form of payment made by the contractor to the employer. Breaches of a legal contract must be enforced by the law courts. The enforcement must be done by a competent court of law. With rooms for hearing .however the entail consideration must always be met. Contract is principally made by the. It is also necessary to note that the court, can enforce contracts to the extent of declaring a portion of the contract void or void ab initio 6. Health and safety laws in the music industry 6.1 introduction Health and safety issues applies in all businesses and covers all those people involved in that business, such as employees, the artist, and other contributors. There are also the issues of hiring temporary workers. The main aim of health and safety legislation is to avoid people getting harmed or injured in the course of their work. 6.2 Enforcement The originator of legislation in the health and safety of workers is stipulated in the Health and Safety at Work Act of 1974 in the UK. The requirements of health and safety may include; risk assessment, health and safety policy, employers liability, health and safety training, employer giving competent advice, provision of basic health, safety, and welfare needs, consulting employees on health and safety, displaying health and safety law poster, reporting accidents and dangerous occurrences, and registering with the health and safety executive or local authority. Noise is a significant issue in the music and entertainment industry, as there is evidence that long exposure to live music can cause hearing complications. Noise should be regulated so that every employer is able to manage the risks associated with noise to their employees and freelancers. The noise should be controlled, reduced, and monitored, and most of the controls are generally cost effective. The audience will be able to enjoy the performance even when the controls are implemented. Amplified systems are becoming more sophisticated and powerful, and these systems are used in the music industry in areas such as hotels, discos, night clubs, and other concert venues. The level of noise produced by such systems is immensely powerful with high sound levels which may cause sensations in the body parts such as the trunk, damaging some internal organs, and the body trunk There is a general perception that control measures for noise cannot be taken seriously in the music industry, since the public wants it that way. Most employers do not understand the obligations put in place under the health and safety act and regulation. Employers are exposed to this high level of noise, the employer is under the obligation to work health and safety regulation of 2008, on section 139 to prevent risks associated with noise. It is the responsibility of the employer to enforce the wearing of hearing protectors. The legal conditions of dealing with this requirement are to provide and enforce individual protective equipments to prevent exposure to risk at work. It is also the duty of the employer to provide health and safety training to the workers, and make sure that they wear them correctly. Rules are created to make sure that live music is played in a safe manner so that the audience can enjoy in a safe way. Employees at the venue of performance can make claims for damages if they incur hearing problems. The proprietors of the music establishments need to have cordial relationships with the neighbours by not playing loud music, or they have to use noise controllers. Their neighbours could either be local residents or neighbouring businesses. Bands need to be aware that when they set up their musical instruments, they should have in mind the notion of setting the volume controls (McChesney, 2004, p. 237). 7. Employment laws 7.1 Introduction Employment in the music industry covers areas such as holidays, pay, redundancy, and discrimination. In the business view of the music industry, there are many areas where personnel would be employed such as music publishing, financial services, internet commerce, manufacturing, and distribution. There are employment relations and human resources issues to be dealt with in labour relations, contract drafting, and union negotiations. Cases of complex employment relations may arise in allegations of discrimination and sexual harassment, work place harassment, training and development, terminations, and affirmative action’s. Prominent music artist such Byonce Knowles will engage the services of people such as talent agents, managers, promoters, distributors and marketers. Therefore, the employment laws are meant to address administrative rulings, and precedence’s that look at legal rights, and restrictions of people working for these music artists. The issue of collective bargaining sets the wage scales, working hours, training, health and safety, overtime, grievances, and the right to participate in the workplace or company affairs. Discrimination may be considered as prejudiced approaches to certain groups of people that can exclude and restrict some category of people from obtaining available opportunities. 7.2 Compromise agreements Compromise agreements are a type of contracts regulated by a statue between the employer and the employee, for which the employee gets some sum of money for accepting that he or she will make no extra claim resulting from any breach of statutory obligation by the employer. Employment tribunals are public bodies with statutory jurisdiction to attend to many disputes concerning unfair dismissal, redundancy payments, and employment discrimination. Severance is provided to employees who leave the employment. It is a pay package based on months of service in lieu of the notice period. Employment compliance is enforced by a number of federal and state laws that prohibit discrimination as well as ordinances of the local municipalities and counties. Wrongful termination is the situation where the employer breaches one or more of the employment contracts, a statue, or a provision in the employment laws (Nicholas, &, Phillips, 1997). The legal issues in the music industry encompass the legal issues of the artist, musicians, engineers, and producers, as they build their careers. The legal issue confronting those people working in the music industry may include finance to set up, co publishing, administration agreements, and digital rights management. The artist needs to understand the contractual agreements between the artists and other parties, such as managers, agents, producers, club owners, and when the artist will require them and involve them in their own plans. The employment laws are put in place to protect the interest of both the employer and the employee, and these laws can also relate to the common law of employment, and depends on different state laws and the federal laws. It enables the artists to engage personnel who are experienced and have adequate expertise to perform, to assist both the artist and the professional in their career growth. 8. Negligence laws in music industry McChesney, (2004, p. 237) also states that negligence laws which are also referred to as tort laws are based on common law or case law. A series of torts are legal rights that allow individuals to sue another person for omission or commission of certain things. When certain things are done or not done, a legal citizen has the legal right to sue. Tort of negligence can be described by the example where you sue someone for injuring you, and requiring people to take care to avoid injuries. It can also be applied to avoid other people causing nuisance near other peoples’ property or neighbourhoods. It could also involve where a person is prevented from misleading others into thinking that they are associated with the business or reputation of another. Apart from passing off, there is not a lot of concentration of tort laws in the music industry. The tort available will be considered as other torts away from the music industry. Music industry laws are always a combination of tort laws and contract laws. These may relate to copyright laws, band structures, band names, and how contracts are read. Brand names laws fall may fall under negligence laws since names are very important for identity, and artists should counter check to make sure no one else has their name. There is need to register the name and trademark to establish the artist’s reputation. Band structures laws are also valuable in company laws where the artist could be working as a solo, in a band, in partnerships, in companies, or in trusts. Torts can also be found in copyright laws to specify who the copyright protects, the formalities of the protection, moral rights, infringement, assigning and licensing copyrighting, and performance rights. Recording and rights in the music industry may encompass the artists doing the recording for themselves, recording agreements, artist control, minimum commitment, advances, royalties, term and option periods, dispute resolution, and the final word. Negligence or professional malpractice can be committed by promoters, talent agents, accountants, and these types of liabilities may be injurious to the reputation of the artist, therefore, appropriate liability risk and protection should be put in place to protect all the parties involved by collaborative practice. When the artist initiates a malpractice lawsuit, it will be resolved by the law of tort, which aims to compensate the plaintiff who proves wrongful injury, justice, education, and deterrence of negligent acts (Sarah La Voi, 2004, p. 171). The liabilities could be categorized as vicarious liability, direct liability, and joint and several liabilities. Some recording companies do not release any of the artists work if they do not see it fit. This is very damaging to the artist who spends a lot of time preparing the work, only to be turned down in the last minute. The artist may engage an attorney to try and rectify the contract so that the music is produced in time. Contracts should specify how the advance is to be given out, and how future royalties are to be paid. This is always paid after the artist has attained a certain minimum commitment which is set out by the record label. Most contracts are made in a way that they favour the recording company; therefore, it is importantly that the artist takes time to go through the contract to ascertain that it is right for him or her. Artist should engage the services of either a music lawyer or solicitor before signing a contract (Schulenburg, 2001). 9. Conclusion In this case, Byonce Knowles is an extraordinarily popular artist who has a number of interests to serve and may not have time to organize most of her finances and intellectual property and copyright. Therefore, it is the duty of her lawyer to ensure that her rights as an entertainer are not infringed. This law is relatively new, as the entertainment industry was not given consideration. However, the rapid development in the entertainment industry has necessitated the enactment of the entertainment laws to help in protecting the right of artists. The participation of lawyers in the media has made the media law develop much faster thereby leading to the development of entertainment law. This paper will ok at the entertainment law and its key components. Recommendations The entertainment law firms all have different practices as most of the entertainment lawyers have varying areas of specialisation. It is therefore the onus of the artist to identify their needs be it litigation need (litigation attorneys) and or transactional needs (for the transactional attorneys). While the litigation attorney only specialise in defensive and offensive legal action, the transactional attorney s are responsible for facilitating entertainment deals, negotiations, strategic initiatives as wells as other contractual issues. It is also advisable for artist to running contracts with entertainment law firms in order to enjoy complete legal coverage and legal representation. This should happen before and after legal issues arise because one entertainment lawyer may not provide the perfect coverage. In this way, the artist will have complete edge in business deals and a clean bill of health in any legal matters. Hiring a reputable law firm with enough resources to represent a client is relatively expensive, but the boutique firms’ have lower fees but less resources, so the choice is upon the client and their representatives or publicity managers. 10. Bibliography Schulenburg, R. (2001). Legal Aspects of the Music Industry, New York: Billboard Books. Watson-Guptill publications. Kanaar, Nicholas; Phillips, C. (1997). Music Business Agreements London: Sweet & Maxwell, 3rd Edition. Rosen, Ronald S, (2008). Music and Copyright. Oxford: Oxford University Press. Harrison, A. (2007). Music: The Business London: Virgin Books, 3rd Edition. Frith, Simon&, Lee Marshall, (2005). Music and Copyright, Edinburgh: Edinburgh University Press, 2nd Edition David C. Adkins, (2004). Right to Privacy?: Why the Private Facts Tort Cannot Coexist with the First Amendment (published at University of North Carolina First Amendment Law Review, Vol. 2, pg. 349 Sarah La Voi, (2004). The Value of Recoding within Reason: A Review of Justin Hughes' "Recoding Intellectual Property and Overlooked Audience Interests" (published at DePaul-LCA Journal of Art & Entertainment Law, Vol. 142, pg. 171 Robert W. McChesney (2004). The Problem of the Media: U.S. Communications Politics in the 21st Century, pg. 237 Read More