Monthly Archives: July 2009

Music Licenses for Film Productions

Intellectual Property: Music Licensing: Similar to the copyright that a filmmaker may have in his work, composers and artists performing music also have copyrights in their works. Accordingly, a filmmaker cannot generally take a commercial CD that he has purchased and utilize songs as the film’s score. Rather, permission and/or licenses need to be provided for the music.

It is likely that a filmmaker will need to enter into both (1) a master use and (2) a synchronization license for each of the musical pieces that he utilizes in the production. A master use license is one which grants the licensee the right to use a specific recording in a production. A synchronization license (also referred to as a “synch license”) grants the right to use a song in timed relation to a visual work (e.g., film or television production). Accordingly, musical compositions used as background scores for film and television require a synchronization license (and generally, a corresponding synch fee). The essential difference is that the synchronization license attaches to the underlying composition, whereas the master use license relates to the actual recording. In other words, if the filmmaker simply wants a song in the background and does not care if it is a particular artist’s version of that song, he may be able to have another artist (perhaps an unknown) perform a cover of that song.

Use of the song itself requires a synchronization license. It is the use of the actual sound recording by a specific artist that requires a master use license. Assuming that the filmmaker hires an unknown artist to perform the song, the filmmaker may be able to obtain the master use rights from the unknown artist far more cheaply than obtaining the rights to a popular artist’s master recording.

“Music clearance” is often referenced as the process of determining what permission is needed to make use of a piece of music. This is normally done by ascertaining the owner(s) of the music; contacting the owner(s); negotiating an appropriate license; and entering into a written agreement regarding the same. As discussed, permission (in this case in the form of music clearance) is required if the filmmaker plans to use music for any of the exclusive rights granted to a copyright owner (i.e. copy, distribute, make derivative work, perform or display). Incorporating music into a production will arguably fall into all of these categories.

Music clearances are generally negotiated by an attorney. The license fee that is requested of the copyright owner can range quite a bit and depending on various factors (i.e., owner(s), popularity of the work or the specific use being requested). In certain cases, it can be quite costly. Nevertheless, it is extremely important to obtain these rights, preferably sooner rather than later. In the event that rights to certain music cannot be obtained, it is generally easier to switch out the music earlier in the production process rather than after the fact.

Comments/Questions: ljm@gdnlaw.com

© 2009 Nissenbaum Law Group, LLC

New Jersey Proposes Social Networking Safety Act

Proposed Legislation: Social Networking: Our attorneys previously co-authored an article entitled  Wrongful Posting on the Internet: The Privacy You Save Could be Your Own. It discussed privacy and other legal issues related to online statements. The article discussed real-life predicaments such as the unfortunate story of a young Missouri girl who committed suicide after having allegedly been harassed on the MySpace social networking website. As the use of social networking websites has grown exponentially, so too have the sordid stories of misuse of those sites for online harassment and sexual harassment.

Since the then-current law was devoid of remedies to specifically address the damages presented by this new trend, in their article, Mr. Nissenbaum and Ms. Magedoff predicted that state legislatures would begin to enact laws to specifically address these issues. New Jersey now appears to be at the forefront of this movement since the New Jersey legislature is currently considering the Social Networking Safety Act. The law proposes imposition of civil penalties for social networking users who transmit a harassing or sexually offensive communication through a social networking website. An offender would be liable to a website operator for $1000.00 plus attorneys fees and would be liable to the recipient of the communication for the greater of (a) actual damages (including compensatory and punitive damages) or (b) $50000.00 plus attorneys’ fees. Notably, certain versions of the pending bill appear to be aimed at communications both (a) to minors under 13 years old and (b) in the event that the communications are sent from someone who is at least 3 years older than the recipient, to those who are younger than 16.

It is critical to understand how this potential law might apply to social networking website operators. Similar to the Federal Communications Decency Act’s immunity, the proposed law seeks to provide a limited immunity to the website operator. However, the it would also impose certain requirements on the website to ensure that it qualifies for that immunity. Specifically, there is a statutory reporting protocol that would need to be adhered to by the website OR they would need to clearly and conspicuously state on the website specific, statutorily-mandated language that indicates they are not complying with those requirements. Failure to adhere to one of these requirements could result in the website operator being liable for the harassing or sexually offensive speech of its users.

Accordingly, all social networking website operators need to be aware of the new requirements that would be imposed upon them if this bill passes. Inevitably, the law would require certain changes to the website text and/or its terms and conditions. Moreover, it is important that website operators understand that this law is aimed at communications that are directed at New Jersey residents. Therefore, it arguably would not make a difference whether the website itself is based in New Jersey; if New Jersey residents utilize the website, it will arguably need to comply with the edicts of the law.

We strongly recommend that all website operators keep abreast of this pending legislation and ensure that they consult with counsel if the law is enacted to be sure that they are complying in a manner that allows them to take advantage of the limited immunity being offered under the law.

Comments/Questions: ljm@gdnlaw.com

© 2009 Nissenbaum Law Group, LLC

New Jersey Proposes Social Networking Safety Act

Proposed Legislation: Social Networking: Our attorneys previously co-authored an article entitled  Wrongful Posting on the Internet: The Privacy You Save Could be Your Own. It discussed privacy and other legal issues related to online statements. The article discussed real-life predicaments such as the unfortunate story of a young Missouri girl who committed suicide after having allegedly been harassed on the MySpace social networking website. As the use of social networking websites has grown exponentially, so too have the sordid stories of misuse of those sites for online harassment and sexual harassment.

Since the then-current law was devoid of remedies to specifically address the damages presented by this new trend, in their article, Mr. Nissenbaum and Ms. Magedoff predicted that state legislatures would begin to enact laws to specifically address these issues. New Jersey now appears to be at the forefront of this movement since the New Jersey legislature is currently considering the Social Networking Safety Act. The law proposes imposition of civil penalties for social networking users who transmit a harassing or sexually offensive communication through a social networking website. An offender would be liable to a website operator for $1000.00 plus attorneys fees and would be liable to the recipient of the communication for the greater of (a) actual damages (including compensatory and punitive damages) or (b) $50000.00 plus attorneys’ fees. Notably, certain versions of the pending bill appear to be aimed at communications both (a) to minors under 13 years old and (b) in the event that the communications are sent from someone who is at least 3 years older than the recipient, to those who are younger than 16.

It is critical to understand how this potential law might apply to social networking website operators. Similar to the Federal Communications Decency Act’s immunity, the proposed law seeks to provide a limited immunity to the website operator. However, the it would also impose certain requirements on the website to ensure that it qualifies for that immunity. Specifically, there is a statutory reporting protocol that would need to be adhered to by the website OR they would need to clearly and conspicuously state on the website specific, statutorily-mandated language that indicates they are not complying with those requirements. Failure to adhere to one of these requirements could result in the website operator being liable for the harassing or sexually offensive speech of its users.

Accordingly, all social networking website operators need to be aware of the new requirements that would be imposed upon them if this bill passes. Inevitably, the law would require certain changes to the website text and/or its terms and conditions. Moreover, it is important that website operators understand that this law is aimed at communications that are directed at New Jersey residents. Therefore, it arguably would not make a difference whether the website itself is based in New Jersey; if New Jersey residents utilize the website, it will arguably need to comply with the edicts of the law.

We strongly recommend that all website operators keep abreast of this pending legislation and ensure that they consult with counsel if the law is enacted to be sure that they are complying in a manner that allows them to take advantage of the limited immunity being offered under the law.

Comments/Questions: ljm@gdnlaw.com

© 2009 Nissenbaum Law Group, LLC