I am trying something new. Instead of releasing an infographic, I thought, why not release a video instead. In less than a minute, I hope to explain two fundamental concepts about copyright law that every artist needs to know.
There is no doubt that most of you have heard about the Constitutional Court’s unanimous decision to decriminalize the smoking of cannabis for personal use. What does this judgment mean, and what are the implications of the new cannabis laws for the music industry?
The impact of this decision in the music industry is, to be honest, no bigger than the impact it has in general. But seeing as the guys at MuzoPlanet ask me to write legal periodicals on music law, I thought l would try my hand on this topic.
The Constitutional Court summarised its position as follows:
- An adult person may, use or be in possession of cannabis in private for his or her personal consumption in private.
- The use, including smoking, of cannabis in public or in the presence of children or in the presence of non-consenting adult persons is not permitted.
- The use or possession of cannabis in private other than by an adult for his or her personal consumption is not permitted.
- The cultivation of cannabis by an adult in a private place for his or her personal consumption in private is no longer a criminal offence.
What is personal use?
An interesting question, well for me at least, is how do we know if possession of cannabis is for personal use within the context of the new cannabis laws? The answer is . . . there is no answer. If you are caught with having cannabis on you, then the police must use their discretion as to whether it really is for personal use or not. If, for example, you have 1kg of cannabis on you, then it seems quite unlikely it is for your ‘personal use’. But hey, it’s possible. At the end of the day, the State will have to prove that it was not for personal consumption, and that is not an easy thing to prove. So it’s likely they (the police) will err on the side of caution and just leave it. The Court said that to prosecute someone for possession, it must be “clear from the circumstances” that it is not for personal use.
Where can you legally smoke?
So now, the main question. Can you legally smoke cannabis within the new cannabis laws? Yes, but only if it’s for your personal consumption in a private space. Going to a bar, concert or festival and lighting one up is not private and you can be prosecuted.
What if you or your friend owns a club on private property? You can try to argue it’s personal use in a private space, but I don’t think that argument will fly. Clubs are inherently public spaces, and all types of people, such as “non-consenting” adults, might be there. If you have a venue that is privately owned, but open to the public, then that does not protect you.
This whole issue of ‘non-consenting’ adults is also interesting. To me, this seems you must ask the people around you if they have any objections to you smoking – even if they are at your house. If they do object, then by law, you may not smoke. If there are children around, then you may not under any circumstances smoke.
The only possible exception I can think as far as the music industry is concerned is if you have a house gig or a soiree with consenting adults. In that case, it is not really open to the public, so I would argue that it is consumption in a private space in front of consenting adults. Band rehearsals or smoking in the recording studio also seem like ‘safe spaces’ provided they are privately owned and not accessible to the public.
I’m going to get straight to the point. This Copyright Reversion clause is arguably one of the more important clauses a contract has to have, yet, contracts seldom have them in. Why? Because companies don’t want to give you your copyrights back, no matter the circumstances.
Let’s consider a realistic example. You are approached by a company who can make you a lot of money if you let them ‘manage’ your copyrights. What does that entail? Just a signed contract where you give your copyrights to them. Great, now they have your copyrights and can work their magic. Ok, now what if they turn out to be quite useless or maybe something more interesting came their way, and they are now focusing on making another person money instead of you. Can you just take your copyrights and leave? 9 out of 10 times you cannot. You gave it to them, and the fact that they are not using them to your advantage is just really unfortunate for you.
To add salt to the wound, let’s say, for example, you find someone who wants to use your song for a commercial. If the company you gave your copyrights to disagrees or maybe just does nothing with this proposal, then your song cannot be used in the commercial. Only the company can give permission for others to use your songs.
A solution? So how do we overcome this? Include the copyright reversion clause into the contract. As the clause name suggests, it’s a clause where copyrights reverse or ‘revert back’ to where they came from, i.e. you. Negotiate for a copyright reversion clause to be inserted into any written agreement where you have to transfer ownership of your copyrights.
Usually, when I draft contracts for clients, I will word the clause in such a way that if the company does not satisfy certain tasks by a certain time, then the copyrights automatically go back to the composer. This is practical as it forces the company to be proactive, or else they fear losing your valuable copyrights. It also prevents a situation where your copyrights lose momentum because a company is not doing anything with them, and you are unable to do anything with them because you no longer own them.
Here is an example / template clause I drafted for you to look at. These clauses can be drafted to suit your particular needs.
“In the event that we (referring to the company) do not cause the copyrights to be distributed within the first 12 months of this agreement being signed, then ownership of the copyrights will automatically vest with you on the first day of the 13th month.”
By the way, if you negotiate for this clause to be included, you will sound like a boss negotiator, and will definitely score extra points.
Have it in. No exceptions.
A client contacted me the other day asking about the legality of her tribute band. This is the first time I have dealt with a question like this before. But it seems pretty obvious, right? There are countless of artists who put on tribute shows and play covers – none of them get in trouble, so it surely must be okay to be in a tribute band. There are generally three legal considerations for tribute bands that come into play – These are copyrights, trademarks and personality rights. Let’s dig a little deeper.
These are the rights associated with a person’s creative work, like music / songs. If you perform another person’s songs, then copyrights kick in (unless the music is in the public domain – but more on this later). The good news about playing other people’s copyrighted songs, is that it is easy to overcome. If you are going to perform someone else’s material, then you must make sure that you report it to SAMRO (South African Music Rights Organisation) and they will, in turn, make sure that the respective artists get paid royalties. SAMRO has all the tools on their website to help you with this. It is usually the venue that should pay the fees as part of their SAMRO license cost. So as an artist, make sure they have one. If they don’t, then there is no harm in you contacting SAMRO and asking for a temp license.
Trademarks come in different forms, but roughly put (like very rough, my former professor would disown me if he read this), a trademark is a branding tool. So, if you see an image of the word “Coca-Cola” then that would probably make you think of the Coca-Cola Company. A trademark’s purpose is to create an association between a product and a company.
If you are using an artist’s trade marks for your tribute shows, then that could have legal consequences. If you intend using a trademark, then you need permission first. The general test with trademarks is that if you use a trademark on a poster and an ordinary person looks at the poster and thinks it is the actual artist who is performing, well then you have problems my friend. If it is obvious that it is a tribute, then you should be in the clear.
These are the rights related to a person’s name, image and likeness (i.e. their character). But do you need permission to use someone’s personality rights? No. Not in our law at least. You cannot own or register personality rights; therefore, you shouldn’t have to pay to use them. Just make sure you are not using the artist’s name in a way that defames them.
And there we have it. Make sure you are clear on all three fronts and tribute away.
It has been a little while since I posted. I apologise. This is an infographic developed with the purpose of explaining what the deal is with cover songs. Many people are confused, and who can blame them. There are a gazilion music organisations out there so where does one even begin? But for covers, all you need to worry about is SAMRO and CAPASSO.
I must give a big thanks to Warrick Percy who is head of the licensing department at CAPASSO, and a pretty cool guy too. He helped me better explain the last two points which are relevant to CAPASSO.
I cannot stress it enough. You should never sign a contract without thoroughly going through it first. Especially when it has to do with your music career.
Fortunately, my message was heard loud and clear by a new client of mine, who we shall call Mr Songwriter. He was presented a rather lengthy 360° recording, publishing and management contract by a well established record label, who we shall call The Record Label. Well to my client’s fortune, the contract was riddled with numerous clauses which have the potential to jeopardize his music career, and which were spotted early enough to prevent damage. Some of these clauses were obvious, whereas most where subtle! The subtle clauses are the ones you must be careful of.
I was approached to read through the contract and weigh in. I did just that, and have decided to share my report with those of you interested. Given the time constraints and the length of the contract, I could not do a clause-by-clause rumble, as my report would have been easily 30 pages in length, so my meager 7 pages will have to do. Read it if you actually want to get an idea of the type of contracts that still exist. Many people think that the big scary contracts I warn them against are like ghost stories – some believe, others don’t. The truth is, they exist (the contracts that is, not necessarily the ghosts).
I always have an open door policy when it comes to contracts. Contact me first before signing, and I can steer you in the right direction. It’s so easy for a lawyer to advise you before entering into a contract, but it is almost impossible, not to mention costly, to get a lawyer involved after the contract has already been signed.
A question I am often asked is “what must I do if someone else is using my song?”. Well, it all starts with a basic understanding of copyright laws, specifically when they relate to infringement.
Copyrights give the copyright owners a wide range of rights, such as the right to make a reproduction (a copy), the right to broadcast, make an adaptation (change) and so forth. If someone is using your copyright, perhaps they have changed it a bit to try hide the fact that they are using your copyrights, then that is still infringement. In those circumstances, you could argue that they have made both an adaptation, as they have changed your material, as well as a reproduction, as they have copied it. You would then sue them, as these are rights which are exclusive to you, the copyright owner.
I usually tell my clients to start by sending them (the infringers) an email to let them know that you know what they are doing, and ask them to stop. This can be done amicably and without lawyers. But sometimes people are cheeky and take chances, in which case you must then bring lawyers in. Keep in mind, that it will be costly – but if your copyrights are worth protecting, then you should protect them. Simple! For example, I know of up and coming photographer who takes lovely scenic shots. A company used one of his images without asking him. Now, he usually charges a R800 license fee to use the image. He told the company to please pay up, and the company took the image down (great) but refused to pay (not-so-great). Should he sue them? Nah – to hire a lawyer to claim R800 is pointless – you fighting on principle. I mean he would probably win, but at what cost,the image was already taken down.
Anyway, I digress – once you go to court, you must prove all the four requirements mentioned above. The last two are incredibly tricky – but as I said, if you have copyrights worth fighting for, then you shouldn’t hesitate to get a legal team who understand copyright law to help you.
Ok, first up. Listen to this clip.
Thoughts? Well, you don’t have to be a copyright expert to know that it sounds a lot like Eminem’s “Lose Yourself”. Ah, but the New Zealand National Party thought they could get away with it because it isn’t the actual song being used. Someone else wrote the song for the advert, and it just happens to sound similar, so sue me. Erm, that is what Eminem did and won about R5.7 million in damages (NZ$600 000).
The judgment by the New Zealand High Court was just released yesterday (25 October 2017) and is about 130 pages long which is pretty long for a case. This case is a win not only for Eminem but for musicians all over the world. Most countries follow similiar copyright laws due to being part of international treaties. That means the New Zealand copyright laws are quite similiar to South Africa’s laws (a few minor differences here and there). So what the court found in NZ could be used in SA, which I am happy about as I fully agree with the reasons the court came to. The most important aspect which I took from the case and which I think is particularly relevant for composers, is that you can’t just take one or two parts of a song, i.e. guitar chords or melody, and change it a little in the hopes that it will sound different. What this court said was that you have to look at the song as a whole. Even if you change every element of the song but it still sounds like another song, then that could amount to copyright infringement.
Now this might sound obvious, but it isn’t. The elements of a song like guitar chords, drum beats, synth, tempo, genre, key etc. – these are not protected by copyright! Why, because otherwise there would be no music. Imagine if I told you that you can never play the chord progression C, G, Am and F. If that were the case then about half of all pop song would infringe on the other (see: https://www.youtube.com/watch?v=hLf6yXkYHmU). So by that logic, Eminem’s track has uncopyrightable elements. You can’t copyright the drum beat, you can’t copyright the guitar chords, the key, the tempo or the guitar rhythm and you certainly can’t copyright the high range of a piano where that little piano melody is played. So this is not looking good for Eminem so far, as all the elements that the NZ national party took are not really protected by copyright – but this is where the court came to a right decision, as the Judge said:
“I accept Dr Ford’s view [a musicologist], that the end result of putting the musical blocks or elements together, whether they are unremarkable or borrowed, is what makes the work distinctive . . . It is the combination of sounds, for instance, the way the staccato guitar and drum beat is combined with the other elements of the song, that makes it distinctive.”
This is why I say it is not only a win for Eminem, but for composers worldwide. Don’t think just because you changed some of the lyrics, and used different chords that you will get away that easy. Now I’m not saying you can no longer be influenced or copy elements from other artists, we all do it, just don’t copy the whole damn song! I think I should write a guide on how to legally ‘steal’ from other songs.
If you want to read a condensed version of the case (like seriously condensed) you can read the media version here:
My first exposure to Intellectual Property law was given by this man, Prof Sadulla Karjiker. I am incredibly fortunate to have had him as my lecturer – as blunt as he is, as he instilled the foundations of IP firmly into my head. We have grown from becoming lecturer / student, to work colleagues (as we both lectured company law together), and to now becoming friends.
About a month ago, Sadulla had his inaugural lecture – which is the first official lecture where he is regarded as being a professor. It was wonderful to be in attendance, even though he chose a heavy topic to talk on, namely IP and Politics. The talk was incredibly relevant as South Africa is currently going through a massive upheaval of its copyright laws. Sadulla is quite vocal about the changes being made. He is a much need voice in my opinion, but then again, I am probably biased. I’ve linked his article on IP and Politics in case you are brave enough to read it.
My latest infographic will explain all the ways artists can make money in the music industry. Some ways are better than others. I compiled a list of what I thought is the best, and what artists should focus on first. But depending on the artists, how long they have been around or where they are in the world, it might change.
Feel free to share . Knowledge is power.
Last week Monday (18 Sep) I got an opportunity to address interested ears on my passion i.e. music law. It was a more intimate environment where every 15min I’d address a new group of about 10 people (did this 5 times). It was great for me to be among so much talent. Quicket, What’s on in Cape Town and Drifters Brewery all did a phenomenal job in hosting this event. Be sure to be at the next one.
I am also proud to announce that as of last week, I am now a member of the Copyright Alliance, which is a group of industry specialists who formed to protect our copyright laws. The goal of the Copyright Alliance is to address issues raised in the new Copyright Bill and to ensure that author’s rights are properly protected, something the new Bill doesn’t seem to care about. Fortunately, those that are party of the Copyright Alliance are in an excellent position to give input as it comprises of members from all the fundamental music institutions in South Africa (i.e. SAMRO, CAPASSO, DALRO, RiSA, SAMPRA, MASA and MPA SA etc.)
Next week Monday I am speaking at a shindig organised by Quicket, What’s on in Cape Town and Drifter Brewing Company. The talk will once again be on music law related aspects – i.e. contracts, copyrights and royalties. As far as I am aware, tickets are sold out, but its worth keeping an eye on the Quicket page to see if any become available. It’s free. And there is free beer (pretty much only reason I’m going . . . kidding!)
My talk at MEX17 was also a great success.. Hopefully I will get to spread the good news more often.
This year I’ve been asked to speak at Music Exchange (MEX) on a topic I’m dearly passionate about. Music law, specifically contracts in the music industry. I got some brochures printed for those attending. I’m quite excited to have something that I’ve worked on (the infographic) being turned into a tangible product.
If you want to learn the ins and outs of music contracts, the pitfalls and what to avoid etc. catch me this year on Sunday, 10 September at 12h00
Have you ever wondered what a music contract looks like without the legal jargon – then scan through this infographic which has some of the most common clauses you can find in a standard record label / publishing contract. I have ‘translated’ the entire contract into an easy to read non-legal jargon based contract i.e. as if the person who drafted it is your drinking buddy. If you are interested, you are welcome to download it just so you can see how bad these contracts can get. Please think twice before signing anything.
▼ Download Here ▼
My thesis which I wrote under the supervision of Prof Owen Dean was converted into an journal article, which was published in 2017 in the Stellenbosch Law Review. May it change the legal landscape for the better – specifically with regard to the music industry.
Towards the end of 2015 I was asked to author a part of this textbook titled “Media Law 2”. It was the first time I had done something of this nature, but I gained a lot out of this process. Looking forward to more.
As of 2016, I have been lecturing the students enrolled at the Academy of Sound Engineering (ASE) in Cape Town both Music Business and Music Law. The classes cover everything related to music law, including the music industry, industry contracts, copyrights, infringement, royalties and how to be a DIY artist, among many other things.
It is exhilarating to be involved at ASE in this capacity, as I am the head of the music law / business department in Cape Town, and ASE is the only place in Cape Town that offers these courses.
I had the privilege of working with South Africa’s most renown copyright expert, Prof Owen Dean. He supervised my thesis on music law titled “How to copy a song with impunity: a legal perspective on copyright infringement cases in respect of musical works”.