Copyrights, LLC, Inc. and Trademarks….What should I know?

Every artist, manager, business owner, etc., needs to know the ins and outs of protecting your name, company, slogan, etc. What better way to learn what to do and what is needed than speaking with an entertainment attorney! I had the pleasure of speaking with Lee Morin, who is an entertainment attorney that I had the pleasure of meeting a while back during a brunch with NARIP.

Ms. Morin took a moment to speak with me regarding the legalities of copyrighting, trademarking, and LLC or Inc. a company! I hope you enjoy.

If you could, please give a brief intro about who you are, how long you've been practicing and what your specialty is pertaining to law!

Greetings, my name is Lee Morin, and I am an entertainment attorney, licensed to practice in Georgia. I own my own firm, Morin Entertainment Law, L.L.C., which just celebrated its one-year anniversary.  I specialize in matters related to business, contracts, and intellectual property for a variety of small businesses in the entertainment industry, in such areas as music, film, television, fashion, fine art, book publishing, and computer and video games.

1. Would you recommend an up and coming artist or group that wants to brand their name to become an LLC or Inc? What are the reasons behind your choice?

Branding is an area related to trademarks.  The theory behind trademarks is as a source indicator, to indicate the source of goods or services supplied by the company.  Over time, the quality of a company's goods or services will or will not build good will, which is like a good or bad reputation with the public that purchases its goods or services.  The mark is important because it tells consumers that they can rely upon the quality or lack thereof of goods or services provided. 

In addition to acting as a source indicator, the trademark once registered provides a privilege to exclude others from using the same or similar mark, so long as the registrant uses the mark in commerce.  Commerce is any type of business regulated by Congress, typically interstate (as opposed to intrastate), or business with foreign entities.  In the music business, a trademark is useful to indicate the identity of the group or artist, which identity builds a reputation over time.  In addition, a mark once registered can provide the artist or group with a means to exclude other groups or artists from using the same or similar mark.

The decision to become a limited liability company (L.L.C.) or a corporation (Inc.) is a complex one.  Each situation must be considered individually.  Generally, an L.L.C. is more flexible and does not have as strict requirements as a corporation.  People typically base a decision whether to file an L.L.C. or corporation on issues of ownership and taxation.  For example, an L.L.C. is taxed like a sole proprietorship, whereas most corporations are double-taxed.

2. Should a group or artist Trademark their name? Why or why not?

It is critical to consider registering for a federal trademark when starting out as a group or artist.  Applying for a trademark on the principal register provides the applicant with a few things.  First, it provides the applicant with notice of what other marks are currently in use and/or are registered.  Depending on the results of a trademark clearance search, the artist or group may wish to reconsider their name.  Reconsidering a name is easier at the outset, before good will or a reputation is built, than half way through a career, when changing the name also means potentially losing name recognition that is so vital to artists now.  Second, applying for a federal trademark serves to impress upon the group or artist the seriousness of the business venture.  When the cost for application starts at $325 per international class, an applicant cannot afford to not take the application process seriously.  Finally, applying for a federal trademark demonstrates to the outside world that the artist or group is serious about taking control of their legal and business ventures as music professionals.

 3. Is it expensive to become an LLC or Inc. in the State of Georgia? How much should one budget?

That depends.  The cost to register an L.L.C. is generally lower because there is generally less paperwork because of less strict requirements than a corporation.  The administrative cost is $100 to file for an Articles of Organization for an L.L.C., and $190 to file for an Articles of Incorporation for a corporation, which includes the $40 fee for Notice of Publication and $50 fee for filing an Annual Registration within 3 months of receiving the Articles of Incorporation.

The professional fees can vary greatly for forming an L.L.C. to a corporation, depending on the paperwork.  Again, because of less strict requirements, generally an L.L.C. will mostly need an Operating Agreement, which is typically presented when opening a business checking account, for example.  In contrast, a corporation will generally require several corporate documents, including organizational minutes, bylaws, and stockholder agreements, for example.

4. Is it expensive to register a Trademark in the State of Georgia? How much should one budget?

The administrative cost to register a trademark in Georgia is $15.  This does not include professional fees for clearing, preparing, filing, and monitoring the application's progress, which can vary depending on practitioner.  Keep in mind that state registration only offers protection for intrastate commerce, that is, business conducted within state lines.  It does not offer protection for business done over state lines or internationally, and the Internet.

5. What can an artist or artist manager copyright? Ex: Can a name, song, or agreement be copyrighted?

Generally, an original work of authorship fixed in a tangible medium is copyrighted under common law.  Essentially, expressions of ideas or organizations of facts (except chronological organization, which is a fact) are copyrightable.  Ideas or facts are not copyrightable.  To file for federal copyright registration provides certain benefits one does not have under the common law.  Subject matter that qualifies for federal copyright is listed in Section 102 of Title 17 United States Code, which includes literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works.

6. Would you advise someone to use companies such as Legal Zoom to obtain an LLC, Inc, or Trademark? What steps should they take instead?

Certainly not. Here an old adage is appropriate to illustrate why not: an ounce of prevention is worth a pound of cure.  Most small business owners that I know have invested their livelihoods into their enterprises.  They would not entrust just anyone with the security and stability of their fortune.  Trusting boilerplate contracts with no trained legal professional assistance is akin to trusting anyone with your future.  It is unreliable and inadvisable.  It may seem okay at the start, but if the work is ever challenged, then chances are it will also cost more to resolve an error that could have been prevented with solid legal advice at the outset.

7. Should everyone seek legal advice or have an attorney compose documents for the LLC, Inc., or Trademark? Can it be done on your own?

For the reasons stated above in question 6, I heartily recommend engaging a trained legal professional, and preferably, a licensed attorney in good standing at the relevant State Bar association, to attend to your legal queries concerning establishing a business and applying for federal or state trademark. 

8. What is an operational agreement and is it needed for any of these entities?

The Operating Agreement is an agreement among Members of an L.L.C. that sets out company information, financial and managerial rights and duties of its Members.  For example, some Members also serve as Managers, while not all Managers are Members.  In a single-member L.L.C. the Member will also serve as the Manager.  In addition, the Operating Agreement discusses procedures for example, should the company dissolve.  For L.L.C.s with more than one Member, the Operating Agreement is essential because in addition to the above, it also spells out ownership or distribution percentages, allocations of profits and loss, meeting and voting, and restrictions governing transfer of membership interests, for example.

9. What advice would you give an up and coming artist that wants to brand their name and protect it? Where should they start?

They can start by just Googling the name they want to use.  Visit industry-related web services, such as Bandcamp, Reverbnation, MySpace Music, SoundCloud, Spotify, or Pandora, and search in the search bar for the name you wish to use.  See if there is already an artist or group with that name.  If you feel lucky and have not found the name you wish to use, seek counsel from a licensed legal professional and pay for a trademark clearance search of that name.  Chances are you will feel more confident in applying for federal trademark protection once you have appreciated the risks and costs associated with the process.

10. Are your services available to up and coming artists? If so, where can they reach you at and is there a starting amount that should be budgeted for your services?

Yes.  They may reach me by sending me an email at lee@morinentlaw.com.  I typically suggest they budget around $1,000 to begin the application process.  Of course, that amount may vary greatly depending on the number of international classes they wish to register, and the complexity of the search.  I know that seeking legal advice is a big step for artists or groups, so I welcome anyone to the table first for a free consultation.

*** Warning: the above post reflects the opinion of the author using general legal principles. The contents shall not be considered legal advice or the formation of attorney and client relationship. The reader is highly encouraged to seek the advice of a legal professional in his/her own area for advice on specific facts.

Lawsuits, Music, and Wigs…Oh My!

The music industry would not be the music industry without someone suing an artist over anything from sampling to copyright infringement. This topic will discuss some of the lawsuits that have affected some of your favorite artists in the past few years. They range from sampling issues to creative design. Take a look and let me know your opinions on the suits and if you think either party has a leg to stand on!

KanyeWest and Jay-Z vs. Syl Johnson: Watch the Throne’ illegal sampling lawsuit

In October of 2011, Syl Johnson, soul and blues musician filed a lawsuit against rappers, Jay-Z and Kanye West, for using a sample from his song “Different Strokes” in a song on their album “Watch the Throne.” Kanye initially wanted to sample the song for his album but was unable to obtain clearance for it. Instead, they used it for their joint album. Jay-Z and Kanye fought the lawsuit on the grounds that copyright laws, due to it being recorder prior to 1972, did not protect Johnson’s song.  This is because the Copyright Act was not amended until 1976 and did not cover the recordings of sound. The case was dismissed and settled in March of 2012. No further information was provided.

In this situation what should Johnson have done? His first thing should have been to do his research, learn the new law, and copyright his song once the new Copyright Act of 1976 was passed. This would have given him more of a foundation. I am unsure if he received any money for this lawsuit but he may have gotten out of just getting a settlement. It’s always best to stay up to date on the laws and know what amended laws cover or no longer cover. This will help protect you and your business.

NickiMinaj vs. Terrence Davidson

Anyone that knows Nicki Minaj knows that she wears some of the craziest outfits and wigs in the industry. Terrence Davidson says that he is the man behind those wigs. Davidson used to work for Nicki Minaj as her wig designer before he quit. He had been working with Nicki Minaj since 2009 and had hoped to work with her in developing a wig line.  It seems as though Nicki started the business on her own. You can see the wigs here http://nickiminaj.shop.bravadousa.com/Dept.aspx?cp=56249_58072. No settlement or response from Nicki Minaj or her attorney’s has been made at this time. For the full complaint please visit http://time.com/9060/nicki-minaj-wig-lawsuit/.

This could be an open and shut case if Terrence Davidson trademarked his work. He has the images, which shows what work he has done for Nicki. Luckily these will help seal that the wig designs on Nicki’s site are indeed replicas of his work. Where I think he may have overshot his suit was asking for $30 million dollars. Although, Nicki Minaj is one of the largest female rappers out right now, asking for $30 million from her is a little far fetched. Many people do not realize that a lot of the artists are not “rolling in the dough” as they may think. They have bills to pay as well. Davidson should lower his amount. However, people always say start big and negotiate down to what your bottom line is.

RobinThicke vs. Marvin Gaye’s family

Remember the summer hit “Blurred Lines” by Robin Thicke? Well, the family of Marvin Gaye felt that it sounded all too familiar. Robin Thicke along with writers Pharrell and T.I. knew that the Gaye family would eventually try to sue based off of claims that they were making and filed a lawsuit in an attempt to catch it.  The Gaye’s countersued and stated that the song was copyright infringement. The company also sued EMI, a Sony music company that was the music publisher for Marvin Gaye and now over Robin Thicke. They felt as though EMI did not protect the Gaye’s estate as they were supposed to. This lawsuit stated that Robin Thicke’s song was very similar to that of Marvin Gaye’s “Got to Give It Up” along with a few other songs that they felt were infringed upon. A settlement was reached in January of 2014 between the Gaye’s and EMI. However, one has not been reached with Robin Thicke and the family.

Further research into this case showed that Robin Thicke might have thrown himself under the bus for this one. Documentation of interviews that the Gaye family has records of show that Robin Thicke made ‘Blurred Lines’ after hearing Marvin Gaye’s song. They wanted to make a song with that same feel good vibe. That’s how they came up with the song. This implicated Robin, Pharrell and T.I. and set them up for a lawsuit. EMI should have mentioned this to Robin Thicke due to them being over the Gaye family as well. They knew of both songs and could have caught the similarity and stopped it from the beginning.

Research the articles and let me know your thoughts!

An Interview with GQ Reeves, son of Kid Capri.

I was blessed to run into a young entrepreneur that goes by the name of GQ Reeves, during a homecoming visit in 2013 at Georgia Southern! He had no idea who I was, but little did he know that I was following his come up. I introduced myself to him and we became good friends. I must take a moment and say that God places people in your life for a reason and we never know that reason until we step out of our comfort zones.

He recently gave me the honor of interviewing him for my blog for class. Please take a moment and get familiar with a person that I am honored and blessed to know. Someone who will soon be known by many more people due to his success!

Name: GQ Reeves

1. What do you do?

GQ: I am a writer who managed to use my gift to move into other areas.  I ghost write for a number of artists. I manage an artist and I work with different labels as the creative director to help artists develop their stage shows.

2. How did you get started?

I started writing these erotic poems and that turned into me making clothing with these erotic poems and stories on them. One day I was asked to turn my poem into a song and that started it all.

3. What is the hardest part of working in the entertainment industry?

For me, the hardest part was being able to stand on my own aside from my dad’s (Kid Capri) name. But, I learned that I had to embrace it. This is the only father figure that I know and he is a major reason why I have the opportunities that I have. 

4. What is the easiest part?

GQ: The easiest is that I love what I do. For me, it’s a natural process. It’s like breathing. 

5. How do you balance work and a personal life?

GQ: I don't have much of a personal life and that has more to do with all of the other projects that I’m involved in

6. If you could work with any artist, who would you work with and why?

GQ: Luther Vandross, his voice was amazing. He has that ability to sing any song and make it his own. I think his cover album is a perfect example of that. 

7. What advice do you have for up and coming artists?

GQ: Not to lose yourself in the process. What is meant for you, no one can take from you. You can have all the talent in the world, but you need to remember two things: 1. Humility should be your most notable talent. 2. Hard work is more important than anything. 

8. What advice would you give to someone that wants to work in the industry but doesn't know where to start?

GQ: What is your passion? Missy Elliott told me that I have to do something that no one has done before and to do that I have to look within myself, because no one is like me. FIND YOUR PASSION AND BUILD ON IT. 

For more information on GQ Reeves, please check out his website www.Iamkingreeves.com, Instagram @bossman_q, and his organization Coaching To Success, @coachingtosuccess, which was created to help youth acquire the skills needed to be successful adults.

Do I need to be affiliated with a Performance Rights Organization (PRO)?

Many up and coming artist’s are unaware of what a PRO is. PRO companies such as ASCAP, BMI, and SESAC are important companies that every artist should be aware of. So what are these acronyms? These are the acronyms that allow you to get paid when people use your music. They do this by collecting performance royalties on your behalf.

Let me break it down in detail for you. As stated by Chris Robley, any time your music is placed on television, radio, commercials, or played in venues you are to receive a “performance royalty.” These royalties are paid through companies such as ASCAP, BMI, and SESAC. Every artist should register with one of these PRO’s to ensure that they are getting their performance royalties.

Not only do you need a PRO, but you also need a publishing company as well to receive your mechanical royalties. I will discuss the publishing side of obtaining monies for placements in future posts. The most important part is obtaining a PRO first so that you are not missing your money.  

As stated in an article on TuneCore; they believe that having a PRO is very important and highly recommended. They call them the “watchdogs of the airways.” TuneCore advises the artist to work with the PRO as well as with TuneCore to help obtain all of the royalties that are due to the artist. You do not have to worry about them taking advantage of you because they work directly with the PRO companies to ensure that you are receiving both your performing and mechanical royalties.

To summarize it, every artist should research each PRO Company and determine which one suits them better. Each PRO pays differently and has different benefits that cater to their artists. My artists work with BMI and ASCAP. I have found that BMI pays 200% whereas ASCAP pays 100%.  I recommend that every up and coming artist conduct their own research on each company and decide which one caters to you and your abilities. 

Negotiating Techniques: What every artist should know

            I had the pleasure of speaking with Wendell Johnson. He was the road manager for the Young Money rapper, Lil Twist. He was also a big part of the YMCMB movement with artists such as Nicki Minaj, Lil Wayne, Drake, and many more. He has been with them for the last five years and continues to work with other artists to help them into the music industry. In his spare time, he is currently working on starting his own company called My own world tour. This is an apparel and accessory company that allows you to express who you are and how you live in what you wear.

In speaking with Mr. Johnson he explained some of his negotiation techniques. I asked Mr. Johnson if uses any dirty tricks or if he has had any dirty tricks used on him during negotiation of a deal. Mr. Johnson stated that this is part of the music industry game. You have to sometimes use tricks to get what you want. An example that he gave was when making a deal for an up and coming artist, he has to make the artist bigger than what he or she is. This is the only way the label will look at the artist. He stated that the music speaks for itself but if the artist does not have the numbers you have to give the label something else to look at. This is a trick of the industry that many artist today use.

When using objective criteria to make a negotiation what sources do you use? Mr. Johnson stated that he normally uses his previous artists or calls other labels and managers to see what offers are being made for that particular negotiation. This helps give him a range of what he should ask for. Mr. Johnson stated that he never starts with a low number for anything. He will start with the highest number possible based off of what he knows the other person can afford. He then works his way down from that number. This way he does not “low ball” himself. Mr. Johnson stated that he researches everything. He always likes to know a little more than what he thinks the other party may know.

When asked if it is hard to separate a person’s interest from his or her position; Mr. Johnson stated that it is hard for anyone to focus on the interest instead of the position of a person. He stated that a true negotiator could do this immediately. He is still working on this at that time. Sometimes he focuses on the person and forgets to remove the person from the actual negotiation and only focus on the problem at hand. He stated that the best way to do this is to write out the problem or the interest of each party from the beginning and then cross them off as the agreements are met. This helps everyone to stay on track and not deviate from the main issue.

I asked if Mr. Johnson had any tips for up and coming negotiators. Mr. Johnson said to always know who and what you are negotiating about before going into the negotiation. Know what questions you need answers to and always have a set starting amount and work your way down. He also stated to stand your ground if it is something that you believe in and do not let anyone bully you out of doing what is best for you and your business. The last pointer that he gave was to not let fear rule your decisions.