Ryan Adams, Taylor Swift, and covering music in the Digital Era

Unless you have been wholly avoiding entertainment news recently, you likely have heard about recording artist Ryan Adams newest album: a song for song cover of Taylor Swift’s “1989” record, in its entirety. Over the past few weeks, I have been asked by both clients and friends how this was legal, and if so, what the process entailed. Because this has been such a hot issue recently (and because this can potentially be very useful information for artists), I thought I would put together a quick summary of the legality behind this project.

The first question most people ask is: “How much did Swift get paid for this deal?” Unfortunately the answer isn’t crystal clear, as typically these agreements are confidential. We can, however, use well established statutory law to estimate. So let’s get to it!

What many people don’t know is that you actually do not need an artist’s permission to record their song legally. Go ahead and record that Milli Vanilli song you always wanted to record, you deserve it. Once a song has been recorded and distributed to the public on any format of recording (vinyl, digital, cd, etc.), any person or group is entitled to record and distribute the song without obtaining the copyright owner’s consent. All you have to do, essentially, is pay a fee, called a “Mechanical Royalty” and meet the standard copyright requirements. The current statutory mechanical royalty rate for physical recordings (such as CDs) and permanent digital downloads is 9.1¢ for recordings of a song 5 minutes or less, and 1.75¢ per minute or fraction thereof for those over 5 minutes. As long as this is paid AND the original copyright owner is put on notice BEFORE the recording, then the covering artist has done what is legally necessary.

It is important to note that there are two separate components of a musical work: the musical composition and the sound recording. The government website Copyright.gov explains that a musical composition consists of music, including any accompanying words. The author of a musical composition is generally the composer and the lyricist, if there are lyrics. A musical composition can be in the form of a notated copy (for example, sheet music); a phonorecord (for example, cassette tape, LP, or CD). A sound recording, on the other hand, results from the fixation of a series of musical, spoken, or other sounds. The author of a sound recording is the performer(s) whose performance is fixed, the record producer who processes the sounds and fixes them in the final recording, or both. Copyright in a sound recording is not the same as, or a substitute for, copyright in the underlying musical composition. A separate license must be obtained from the copyright owner of the sound recording before a musical work can be used.

Now that we get past the legal mumbo jumbo, how does that relate to the Swift/Adams situation we are speaking about? In short: Swift owns the actual songs as well as the master, while Adams is actually just licensing the songs from Swift (though he will outright own the recordings for HIS versions of the songs). So to get to the main point of this article, when we look at the track list for 1989, we see that all of the songs fall under 5 minutes in length (oh, how original). Because of that, the Mechanical Royalty rate, at 9.1 cents per song for 13 tracks would be a total of $1.813 per album that Swift’s team would get. So essentially Adams just needed to make Swift’s team aware he was going to create this album, and pay the minimum copyright MR rate.

Doesn’t seem like a crazy number, right? Well, put down your pitchforks T-Swift fans, she will be making significantly more money in Performance Royalties (which I may discuss in a future post), which include:

• plays on terrestrial and satellite radio (Sirius, KEXP, etc.)

• usages on network and cable TV, film, commercials, games, etc.

• plays on internet radio

• plays on online music streaming services (Spotify, Pandora, etc.)

• performances in live venues

 

So that about sums it up. Please be aware that my analysis involved the absolute basics of copyright law on the subject, and this article is in no way legal advice specific to a similar situation you may be in. It is also worth noting that many artists will negotiate much more complicated deals that the simple statutory requirements set above. If anything, I hope this shows you that if you are feeling creative, there are ways to make sure that music gets produced in fashion that adheres to current federal copyright law. Play on, folks.


The Law Office of Daniel J. Palmer

The Complex World of Texas Protective Orders

Part 2- Criminal Emergency Protective Orders

Not too long ago, when I was an Assistant District Attorney here in Bexar County, I co-directed a seminar for members of the San Antonio Bar Association regarding complexities of the Protective Order system in San Antonio and the surrounding areas. At the time, I was the lead 1st chair attorney for the Protective Order Division of the Bexar County District Attorney’s Office. Over the next few blog posts, I want to introduce some current issues in the field of Protective Orders that as a citizen, you should be aware of.

I previously introduced two different types of protective orders, as well as some of the more common types of PO’s that you see, including a Criminal Emergency Protective Order.

Criminal Emergency Protective Orders occur when a Judge believes that the individual who accused you of a crime is in danger of being threatened or injured by you during the pendency of your charges. These EPO’s, as they are called, are very difficult to get lifted and are concerning for several reasons.

1.      You could be kicked out of your house immediately after an EPO is signed by a judge.

EPO’s are not designed to put you on the streets, but unfortunately that is what often happens due to Judges issuing EPO’s in an abundance of caution for the alleged victim, without any evidence to prove that you may have committed the act in which you were arrested for. Not only that, EPO’s are typically issued before you have had access to an attorney, and before much evidence has been gathered in the case.

2.      EPO’s can keep you away from your children.

As stated before, if an EPO is filed against you and your house is listed  as a protected address on the EPO, and your children live in that house, then the EPO could effectively keep you from having access to your children, even if prior custody orders are in place. Many people have asked me if this will hold up even if the children were not party to the alleged incident. The answer to that can be complicated, but to be frank, yes that is an absolute possibility, as I have seen it happen to those accused of violent crimes often.

3.      Once issued, EPO’s are generally very difficult to get lifted without an attorney experienced in Domestic Violence crimes.

After your case gets sent to County or District court, the County/District Judge typically will not lift the EPO since they were not the issuing Judge. You must then find the original Magistrate Judge that issued the EPO and convince him/her to lift it, which can be tremendously more difficult than it sounds.

It is very important that you contact an attorney the moment you are arrested. It is possible to prevent an EPO from ever being issued. If an EPO is in fact issued, a qualified attorney may be able to help you to get that EPO lifted. Next post, I will discuss Civil Protective Orders and what they entail.

 

This Blog is made available by The Law Office of Daniel J. Palmer strictly for educational purposes only, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and The Law Office of Daniel J. Palmer. This Blog should never be used as a substitute for legal advice from a qualified licensed attorney in your area.


Kids for Cash documentary: a Juvenile Law scandal

For Juvenile law practitioners like myself, this is an absolute nightmare. The “kids for cash” scandal unfolded in 2008 over judicial kickbacks in Luzerne County, Wilkes-Barre, Pennsylvania. Two judges, President Judge Mark Ciavarella and Senior Judge Michael Conahan, were accused of accepting money from Robert Mericle, builder of two private, for-profit youth centers for the detention of juveniles, in return for contracting with the facilities and imposing harsh adjudications on juveniles brought before their courts to increase the number of residents in the centers. Thankfully this scandal was made public, but similar situations have been reported in other parts of the country and have unfortunately gotten little to no media attention. Check out the documentary “Kids for Cash” on Netflix, a fascinating look at a unique issue in the American Juvenile Law system. http://dvd.netflix.com/Movie/Kids-for-Cash/70298455


The Complex World of Texas Protective Orders Part 1- Protective Orders: A Primer

Not too long ago, when I was working as an Assistant District Attorney here in Bexar County, I co-directed a seminar for members of the San Antonio Bar Association regarding the complexities of the Protective Order system in San Antonio and the surrounding areas. At the time, I was the lead 1st Chair Attorney for the Protective Order Division of the Bexar County District Attorney’s Office. Over the next few blog posts, I want to introduce some current issues in the field of Protective Orders that as a citizen, you should be aware of.

This week, I would like to spend some time talking about exactly what a PO is, and what it is meant to accomplish. A protective order is an order from the court that prevents an individual from making any type of contact with another individual, either personally or through a third party. There are many different ways that a protective order can be issued by a court, but they are most commonly used in two different scenarios:

1)      Criminal Emergency Protective Order- After a  criminal offense, a Judge (typically a Criminal Magistrate Judge) may issue an Emergency Protective Order if he/she believes that the accuser is in danger of being threatened or injured by the accused. These EPO’s, as they are called, are very difficult to get lifted, though they are temporary in nature (often 60-90 days).

2)      Civil Protective Order- In certain situations, a Civil Judge may issue a Protective Order against an individual if they believe that family violence has occurred in the past, and that there is a likelihood it could occur in the future. A PO issued by a Civil Judge can last anywhere from 1 day to the lifetime of the accused.  Prosecutors typically do not need a large amount of evidence for their case to get a Judge to grant a PO. An experienced criminal defense attorney, however, can attack the State’s case and convince the Judge to deny the motion for Protective Order.

Though these are the most common forms of PO’s here in Texas, they do exist in many other forms.   You may be wondering why PO’s are so important to learn about. It is important to note that if you are accused of family violence and have a PO issued against you, there are many severe consequences that could arise, EVEN IF YOU ARE NOT GUILTY OF FAMILY VIOLENCE AND DO NOT VIOLATE THE PROTECTIVE ORDER. Just a few of these consequences are:

·         Being charged with a Misdemeanor criminal offense

·         Being charged with a Felony criminal offense

·         If you have children with the accuser, never being allowed to see your children again

·         Alterating of divorce/custody arrangements previously entered by a court

·         Losing the ability to own or possess a firearm for your entire lifetime

·         Being kicked out of your home

·         Losing your job

·         Losing various types of licensures

·         Losing the ability to visit places you have been visiting for years (churches, nursing homes, schools, etc.)

·         Many, many other consequences

As you can see, PO’s can severely affect your liberty. If you are facing a PO, it is extremely important to contact a licensed attorney that understands the complexities of PO’s in order to navigate your way through this confusing ordeal. Next post, I will continue to discuss PO’s as well as address Emergency Protective Orders in more detail.

 

This Blog is made available by The Law Office of Daniel J. Palmer strictly for educational purposes only, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and The Law Office of Daniel J. Palmer. This Blog should never be used as a substitute for legal advice from a qualified licensed attorney in your area.