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.
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.