Copyright is a form of protection for original works of authorship that are "fixed in a tangible medium of expression." Subjects of copyright might include a poem, a sculpture, a piece of music, or a film.
The Copyright Act of 1976 grants a number of exclusive rights to copyright owners. These include the exclusive right to reproduce the work, an exclusive right to distribute the work, and the exclusive right to perform or display the work. This bundle of rights allows a copyright owner to be flexible when deciding how to realize commercial gain from the underlying work. The owner may sell or license any of these rights to a third-party. For more on copyright law, check out Nolo's Copyright Handbook, by Stephen Fishman.
A trademark is a word, name, phrase, or logo that identifies a product or service and helps distinguish it from that offered by the competition. Trademarks can be established through actual use in the marketplace, though they can also be registered with the U.S. Patent and Trademark Office.
Trademark law aims to prevent consumer confusion by allowing a trademark owner to sue an infringer. For example, Ford is a well-known car manufacturer. If a new company started making cars and labeled them as "Fords" but charged significantly less, consumers might be tricked into purchasing the competing company's cars, largely because the consumers will assume that they are the same qualify as "real" Fords. In this situation, the law would allow Ford to sue this infringing company for damages.
See How to Do a Trademark Search Before Choosing a Business or Product Name.
A patent is a grant to an inventor that allows the inventor to monopolize the manufacture, use, sale, and importation of an invention. This right lasts a limited time (currently 20 years after the application date) and gives the patent owner the right to recover damages in a lawsuit against an infringer. There are multiple types of patents available to inventors depending on the nature of the invention. For more, see Guide to Patents.
A patent allows the creator of certain kinds of inventions that contain new ideas to keep others from making commercial use of those ideas without the creator's permission. Trademarks, on the other hand, are not concerned with how a new technology is used. Rather, they protect names of products and services, logos, and other devices—such as color, sound, and even smell—that are used to identify the source of goods or services and distinguish them from the competition.
For example, let's say Juan invents a new type of hammer that makes it difficult to miss the nail. Not only can Juan prevent others from making, selling, or using the precise type of hammer he invented, but he may also be able to apply his patent monopoly rights to prevent people from making commercial use of any similar type of hammer during the time the patent is in effect (typically 20 years from the date the patent application is filed).
Generally, patent and trademark laws do not overlap. When it comes to a product design, however—say, jewelry or a distinctively shaped musical instrument—it may be possible to obtain a patent on a design aspect of the device while invoking trademark law to protect the design as a product identifier. For instance, an auto manufacturer might receive a design patent for the stylistic fins that are part of a car's rear fenders. Then, if the fins were intended to be—and actually are—used to distinguish the particular model car in the marketplace, trademark law may kick in to protect the appearance of the fins.
For more information about trademarks, see Nolo's Trademark Resource Center. For a clear explanation of the differences between patents and trademarks, and of the entire patent process, get Patents for Beginners by David Pressman and Richard Stim (Nolo).
Copyright protects original works of expression, such as novels, fine arts, music, audio recordings, photography, software, video, cinema, and choreography by preventing people from copying or commercially exploiting them without the copyright owner's permission. Copyright laws do not protect names, titles, or short phrases.
Trademark law, by contrast, protects distinctive words, phrases, logos, symbols, slogans, and any other devices used to identify and distinguish products or services in the marketplace. Trademark law is primarily aimed at helping consumers to quickly identify the source of goods; the goal is to help consumers avoid confusion. "Apple" is a trademark for the famous computer company. Its recognizable apple-shaped logo is also a trademark.
There are, however, areas where both trademark and copyright law may be used to protect different aspects of the same product. For example, copyright laws may protect the artistic aspects of a graphic or logo used by a business to identify its goods or services, while trademark may protect the graphic or logo from use by others in a confusing manner in the marketplace. Similarly, trademark laws are often used in conjunction with copyright laws to protect advertising copy. The trademark laws protect the product or service name and any slogans used in the advertising, while the copyright laws protect the additional creative written expression contained in the ad.
For more information about copyright law, see the Copyright section of Nolo's website.
With the exception of innovative designs, patents are closely associated with inventions and processes that are useful. By contrast, copyrights are often used to protect expressive arts such as novels, paintings, music, phonorecords, photography, software, and films.
While it is possible to get a patent on technologies used in the arts, copyrights are normally the mechanism for one artist to "own" his or her own creations, and prevent other artists from "stealing" it. For example, an inventor could apply for a utility patent on an innovative camera lens used to create a movie. But the author of the script would receive copyright protection and the cameraman could receive a separate copyright in the cinematography.
An exception to the general rule is that design patents, which protect the ornamental design of products, can overlap with copyrights. These two legal protections overlap when functional objects—for example, guitars, table tiles, clay pots, or running shoes—embody a distinctive or pleasing visual appearance.
To learn more about copyright protection, visit the website of the U.S. Copyright Office. To learn more about patent and trademarks, visit the website of the U.S. Patent and Trademark Office. Need further help? For a comprehensive and readable guide to patent, copyright and trademark law, read Patent, Copyright & Trademark: An Intellectual Property Desk Reference by Richard Stim (Nolo).
Their services won't come cheap, of course. Indeed, you might find yourself sitting in an attorney’s waiting room preparing to hire someone who charges more per hour than you earn earn in a whole night! For better or worse, however, attorneys are part of the fabric of the entertainment industry. They facilitate connections between performers, producers, and venues, and assist in drafting and negotiating contracts. If a deal goes wrong; perhaps a venue refuses to pay you, for example; you will want an aggressive attorney to defend your interests.
But just as there are many entertainers, not all of whom are right for a particular role, there are many lawyers—especially in major cities. How do you choose the right one?
As in most areas of life, one size does not fit all. Your choice of an attorney usually depends on the situation you face. The most common reason that an entertainer hires a lawyer is to review, draft, or negotiate a contract.
But you might also hire a lawyer if you need to litigate, for example if your producer breaches a contract, or if your manager has stolen money from you.
There are different types of entertainment lawyers for these two broad categories of legal problems: writing a contract versus fighting a battle.
Some lawyers only draft and negotiate contracts; these are known as "transactional" attorneys. Some only handle lawsuits and represent actors (or producers or venues); these are known as "litigators."
To make matters more confusing, there's a third category of lawyers whose primary business is "shopping" the entertainer. ("Shopping" means soliciting business on behalf of an entertainer). While these professionals may be lawyers by training, they're primarily acting as agents or business managers rather than legal advisers.
Often, an entertainer maintains an ongoing relationship with an entertainment lawyer, much like a patient with a family doctor. If problems arise, such as tax concerns, criminal charges, or bankruptcy, the entertainment attorney will help the client find a specialist. For example, if an entertainer faces a lawsuit, the entertainment attorney can help the entertainer find a litigator who specializes in the type of litigation at issue (such as a copyright dispute).
The first step in finding an entertainment attorney is to be sure you know your goals. Often, the best way to locate an attorney is through referrals from other entertainers. It's also possible to locate, interview, and hire a entertainment attorney through an online directory, such as Nolo's Lawyer Directory, which splits attorneys into different practice areas (copyright, business, litigation, and so on).
Another important resource is your local bar association; essentially a professional organization for lawyers in a particular geographic area, such as a state or city. Often, these organizations offer lawyer referral and matching services, or at least lists of local attorneys with active practices in different areas of law.
Finally, there are many nonprofit organizations, such as the Volunteer Lawyers for the Arts in New York City, that can give referrals of attorneys whose practices focus on artists, singers, musicians, performers, and others in the entertainment industry. Law school clinics are another similar option. For example, Cardozo School of Law's Indie Film Clinic assists independent filmmakers with legal issues without cost.
Entertainers must audition to get work, and the same is true for attorneys. They will often start with an initial consultation with a prospective client, in which the client can get a sense of how the attorney would approach the issue at hand and determine whether or not working with that attorney seems like a good idea.
If you are determined to achieve a specific result, such as escaping a contract that you have signed or leasing a studio, discuss whether the attorney has undertaken that task successfully before. Do not be shy about asking for professional references; most successful lawyers would be more than happy to provide a few names of current or former satisfied clients. Does the lawyer represent other entertainers, especially entertainers who have similar careers and legal issues as you?
During your initial meeting, also ask whether the attorney believes that your expectations are realistic. Can you actually achieve the outcome you wish? A good lawyer should be able to answer honestly.
Also, remember to ask questions about the timing of services. How long will it take to achieve your desired outcome? Will the lawyer return all of your phone calls personally? How long will it take to get you a first draft of a contract? Non-lawyers are often surprised to learn how slowly the legal system moves, particularly when courts are involved. It's best to clarify those timing expectations at the start of your relationship.
Legal services can be expensive. After you have discussed the legal tasks required, it's time to start talking about money. Understand up front that most attorneys bill on an hourly basis (often between $300 and $700 an hour) and send a bill at the end of each month.
Some attorneys bill on a fixed-fee basis, in which you pay a set amount for services (expect to pay $5,000 to $25,000 to negotiate a major entertainment deal, for instance). The so-called "billable hour" is still the most common method of payment.
Many attorneys ask for a retainer, which is an advance payment for legal work. The amount of the retainer is included in the attorney-client fee agreement.
The fee agreement is negotiated between you and your lawyer and establishes the payments and the lawyer’s responsibilities. It is usually contained within a broader retainer agreement, the contract between you and your lawyer outlining your relationship. You should carefully read the retainer agreement to understand your rights as a client. If you sign a agreement, be sure to include a provision stating you have the right to drop your attorney at any time. (In many states, such as California, a client always has the right to terminate the attorney for any reason or no reason at all.)
Do not be embarrassed to get specific about billing. It's important for all concerned to know whether you can afford the lawyer's services. Ask how charges are calculated, and what the estimated cost for the job at hand will be. Is a retainer required? If the lawyer bills by the hour, can you get a cap on the price in case negotiations are unusually protracted? Find out whether you can use a credit card, or pay over several months, and whether interest will be charged if your payments are late.
Be sure you will be provided with a written retainer letter outlining payment terms. You would not want a situation where the lawyer makes certain oral representations, for example that you could pay in installments, but then fails to honor that promise later.
Some entertainment attorneys use unique billing systems. An attorney may, for example, charge the entertainer a percentage of the “value” of a deal. This “value billing” system can be unpredictable. Usually, only the powerhouse lawyers engage in value billing. Beware of attorneys who may attempt to switch to value billing during the period of legal representation. Every lawyer should provide a retainer letter up front saying how charges will be calculated.
Below are billing tips that will help protect you:
Don't choose an attorney purely based on his or her "know-how." Consider also style and personality. While these qualities might seem superficial, remember that you may spend long hours working together. You may prefer to be represented by an attorney whose style and demeanor correspond with yours. Do you want someone aggressive? Ambitious? Accommodating? Serious? Boisterous?
Also consider whether you want someone with a particular reputation in the industry. For example, how well does the attorney understand your particular field of work? Does the attorney have a reputation as ethical, or sneaky? Does his or her name strike fear into the hearts of other lawyers and, if so, do you want that?
After you talk to a number of different lawyers, decide which qualities feel best for you.
An entertainer does not need to love his or her attorney, but should at least respect and trust the attorney’s abilities as a hired professional. As a general rule, you should switch attorneys (fire one and hire another) if you are unhappy with the services you've received. But also remember that switching attorneys is a nuisance, and you may lose time and money during that transition.
How do you fire an attorney? Send a letter stating that you are terminating services and want your files returned. The attorney will probably retain a copy of your files and return the originals to you. You may be asked to pay any outstanding bills. However, an attorney cannot withhold your files because you have failed to pay your bills.
If your attorney is in the midst of representing you to a third party (for example, a record company or movie studio), you should also notify that third party that you're no longer working with the attorney and that future correspondence should be sent to you directly (until you retain a new attorney).
The easiest way to switch attorneys is to find a new attorney and ask the old one to send the file to the new one. In that case, before terminating your current attorney, you would have another attorney prepared to take over any outstanding legal work.
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