We’re excited to welcome guest blogger Jenny Milana, of DangerMilana, whose experience in contract negotiations, copyright issues, and other legal matters spans the publishing, theater, music, film and television industries. What’s more, while growing up in California, Jenny worked as an actor, so she knows the field from the creative side, too.
She’s generously agreed to field artists’ questions on legal matters relating to their work. (Incidentally, if you have any arts law questions, send them our way for a future “Ask an Arts Attorney” post.)
Please note: this post is for informational benefit only and should not be used in place of actual legal services. Also, as a state agency, the Massachusetts Cultural Council does not endorse any individual business or service.
So without further ado…
My questions may be a little different than what you may typically hear from artists concerning copyright. At this point I am not concerned about the copyright of my own work but the copyright of published books and illustrations. I love to work with paper and am interested in using books with illustrations as materials for a new project. First, I understand that any work published before 1923 is considered public domain, but if those works are re-published at a later date (ex: Alice’s Adventures in Wonderland originally published in 1865 but the story re-published in 1946), is the 1946 publication considered public domain as well? Can I purchase that 1946 copy to be used in a new work of fine art? Thank you so much for any help!
Let It Fly
Dear Let It Fly,
Your question is a bit tricky because it involves the doctrine of fair use. Works in the public domain do not have any copyright protection and can be freely used. However, if those works are re-published at a later date by a new author and they are not identical to the original works, then such work does have copyright protection in the new material. The new material could be a spin on the story’s ending or the illustrations.
The original story itself which is in the public domain can still be used, but the new publication typically has taken the original work and modified it somehow, repackaged it in such a way which gives the new publication copyright protection in those new elements. So in your example about Alice in Wonderland, if the 1946 publication is still copyrighted because it maintained its registration prior to the 1976 copyright law, then you could not take that book and use it in a work of fine art because you are creating a derivative work, a right held exclusively to the copyright owner. A derivative work is a modification, or new use of the original work. You could, however, create a derivative work using the 1865 original.
A few questions. The first has to do with music publishing: what should an indie artist be on the lookout for when trying to license their original music? The second is about gigs: is there a casual way of putting something in writing for a gig which is both legal, casual and easy? Possible uses: dj’ing a wedding, gig at a small club on a tour (making sure gear and staff agreed upon, etc. is there).
Indie Songster in Somerville
Dear Indie Songster,
As in most things there is a long answer and a short answer. I’ll try to give you something in between. A musician looking to license their work should be on the lookout for a variety of things. The first and most important thing to watch out for is what rights you are licensing away. You don’t want to end up with your music as the theme song to a pornographic movie if your target market is teens, for example. You don’t want to give exclusive rights, either, otherwise you won’t be able to license your music for other purposes. There are also two kinds of licenses, master license and synch licenses. Most often, a music license needs to contain both. The master license is for the sound recording and a synchronization license is for the music and lyrics, or musical composition. Most licenses require both but some uses may not need both.
You want to make sure when negotiating rights that subsidiary rights like merchandising are talked about as well so it’s very clear what you are allowing the other party to do and not do with the music. Another thing to be on the lookout for is royalties. The royalties or cost to license the music should take into account every right or use you are granting. Some of these things may not be negotiable, though, when licensing to places such as iTunes. Most often, those contracts are not negotiable.
With regards to your second question, there is definitely a way to put something in writing that keeps thing casual but still protects your interests as best you can. Most parties do things on a handshake, and to involve lawyers and complicated contracts sometimes puts bad tastes in people’s mouths, which strains the relationships. At our firm DangerMilana, our primary goal in reviewing/drafting or negotiating any contract is to talk with the parties as though the contract is more like a collaboration agreement. Everyone’s goal is to continue working together and keep things moving, rather than slow things down going back and forth with negotiations. The contract should also be drafted in as plain English as possible, without all of the legalese. For small gigs like DJing weddings, etc., a contract is of utmost importance as it can be the difference in months of headaches and not getting paid. It also sets the expectations from the beginning.
Those types of contracts should be friendly, basic and no more than two pages at most if at all possible. I would still recommend a lawyer to draft this document, though, because they can maximize protecting your interests in as little wording as possible.
I recently won a publication contest for a book of short stories. I then received a contract to sign. This will be my first published book and so I had no agent and knew no lawyers with specialties in this area. I joined the Author’s Guild for an annual fee of $70 or so, and they reviewed the contract for me and sent me a lengthy response with proposed changes. I was then left more or less on my own to negotiate with the publisher based on their advice. Can you recommend a better way to do this?
Even after I won the prize, I still felt that I was extremely lucky to have found a good publisher for a collection of literary short stories, and although it seems to me the publisher negotiated in good faith, I still felt like I had very little leverage. Should I have acted tough? Should I have gone in swinging? Or should I just be grateful? And let’s say I had hired a lawyer, what should I have expected to pay?
Published but perplexed
First of all, congratulations on winning the publication contest.
Second, unfortunately there are not a lot of better options. The best option is to have a lawyer do the negotiating if possible. That can be difficult though as lawyers can be expensive. One option is to request the attorney to simply negotiate the really important clauses like price or rights. This can cut down on the cost immensely and protect your interests in the area you are most concerned about.
Regarding your second question, I wouldn’t suggest going in swinging or just being grateful either. As I mentioned in another answer, our goal with any contract negotiation is that the parties are going to be working together and likely want to preserve the ability to work together in the future. As to what you could expect to pay, firms charge all different types of rates, some flat, some hourly. To give you a sense, though, our firm’s hourly fee is typically $300. However, we charge a flat fee for certain services such as contract review. For a review of a contract of less than five pages, we have the artist come in to sit and talk about their concerns (which which typically takes a good hour or so). But our flat rate for that ($150) would be significantly lower than our hourly rate. So when you approach a lawyer be sure to clarify what the rate is – and which type of rate it is – for the service you require. Be aware that some services may have a minimum retainer.
At our firm, we try and work with artists, and depending on the project, can offer a pricing level to fit the artist’s situation. Every artist is different, as are their needs. Some lawyers will be a better fit than others, so don’t hesitate to ask around until you find representation that fits your needs.
Jenny Milana, a partner at DangerMilana, specializes in arts, media, and entertainment law.
If you have any questions for a future “Ask an Arts Attorney” post, send them here.