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NASHVILLE SONGWRITERS HALL OF FAME ANNOUNCES 2018 INDUCTEES

Yesterday I had the honor of attending the announcement of the Nashville Songwriters Hall of Fame’s 2018 inductees, Ronnie Dunn, K.T. Oslin, Byron Hill, Wayne Kirkpatrick and Joe Melson.  I am so honored to serve as general counsel for this outstanding organization and serve with president Pat Alger, executive director Mark Ford, and all of the other talented and wonderful directors on the board, not to mention the fact that I get to brush elbows with these 200+ amazingly talented songwriters.  Below is the press release:

[/fusion_text][fusion_text columns=”” column_min_width=”” column_spacing=”” rule_style=”default” rule_size=”” rule_color=”” class=”” id=””]Nashville, TN August 7, 2018 – Ronnie Dunn, K.T. Oslin, Byron Hill, Wayne Kirkpatrick and Joe Melson will be inducted into the Nashville Songwriters Hall of Fame in October, according to an announcement made today by Hall of Fame member Pat Alger, chair of the organization’s board of directors.

The five new inductees will join the 208 existing members of the elite organization when they are officially inducted during the 48th Anniversary Nashville Songwriters Hall of Fame Gala on Sunday, October 28, at the Music City Center.

“This time of year, as board chair of the Nashville Songwriters Hall of Fame Foundation, I am always reminded of the broad variety and high quality of the songwriting talent we are so fortunate to be able to celebrate,” says Alger.  “The musical trends might change through the years, but for us it always comes down to great songs and legendary songwriters – the bedrock of the town that continues to be hailed as Music City.  This year’s nominees for the Nashville Songwriters Hall of Fame were inspiring and impressive as always, each one deserving recognition for the impact they made. Today it’s my great honor to welcome the Nashville Songwriters Hall of Fame class of 2018:  Byron Hill and Wayne Kirkpatrick in the songwriter category; Joe Melson in the veteran songwriter category; Ronnie Dunn as our songwriter/artist and K.T. Oslin as our veteran songwriter/ artist.”

Byron Hill’s songwriter credits include “Pickin’ Up Strangers” (Johnny Lee), “Fool Hearted Memory” (George Strait) and “Nothing On But The Radio” (Gary Allan).  Wayne Kirkpatrick’s resume is known for the Grammy-winning “Change The World” (Eric Clapton) and “Little White Church” (Little Big Town) and the Broadway musical Something Rotten!.  Joe Melson is the co-writer of the Roy Orbison hits “Only The Lonely (Know The Way I Feel),” “Crying” and “Blue Bayou.”  Ronnie Dunn popularized many of his own compositions, including the Brooks & Dunn hits “Neon Moon,” “Boot Scootin’ Boogie” and “Believe.”  K.T. Oslin recorded many of her self-penned hits, including “80s Ladies,” “Hold Me” and “Come Next Monday.”

The Nashville Songwriters Hall of Fame Gala is one of the music industry’s premier events of the year.  The evening features tributes and performances of the inductees’ songs by special guest artists.  In recent years artists such as Garth Brooks, Luke Bryan, Jimmy Buffett, Ronnie Dunn, Emmylou Harris, Alan Jackson, Tim McGraw, Thomas Rhett, Blake Shelton, Marty Stuart, Taylor Swift, Josh Turner and Trisha Yearwood have performed at or participated in the event.

Also at the event, NaSHOF will present Reba McEntire with the inaugural Career Maker Award in honor of her significant influence on the songwriting careers of Hall of Fame members.

Tickets for the Hall of Fame Gala are $250 each and benefit the nonprofit Nashville Songwriters Foundation.  Select seating is available to the public and may be purchased as available by contacting Executive Director Mark Ford athoftix@nashvillesongwritersfoundation.com or 615-460-6556.
 
About the Nashville Songwriters Hall of Fame:

Induction into the Nashville Songwriters Hall of Fame is one of the nation’s most highly prized songwriting achievements.  Since 1970, the Hall has enshrined more than 200 of the greatest writers from all genres of music ever to put words to music in Music City, including such luminaries as Bill Anderson, Bobby Braddock, Garth Brooks, Felice & Boudleaux Bryant, Johnny Cash, Don & Phil Everly, Harlan Howard, Kris Kristofferson, Loretta Lynn, Bob McDill, Bill Monroe, Willie Nelson, Roy Orbison, Dolly Parton, Dottie Rambo, Jimmie Rodgers, Fred Rose, Don Schlitz, Cindy Walker and Hank Williams.  Operated by the non-profit Nashville Songwriters Foundation, the Hall of Fame is dedicated to honoring Nashville’s rich legacy of songwriting excellence through preservation, celebration and education.  More information is available at http://www.nashvillesongwritersfoundation.com/.
 
Photo (l-r) Inductees Wayne Kirkpatrick, Byron Hill and Joe Melson; NaSHOF Executive Director Mark Ford; Inductees K. T.  Oslin and Ronnie Dunn.

Photo Credit:  Bev Moser
 
Contacts for the Nashville Songwriters Hall of Fame:
Media
Jennifer Bohler / Alliance
615 292 5804
[email protected]

Executive Director
Mark Ford / NaSHOF
615 460 6556
markford@nashvillesongwritersfoundation.com

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Inductee Biographical Information
 
BYRON HILL
Winston-Salem, N.C., native Byron Hill moved to Nashville in 1978 and soon signed with ATV Music Group, where he enjoyed his first cuts with “Pickin’ Up Strangers” by Johnny Lee and George Strait’s first #1 “Fool Hearted Memory” in 1982.  Byron left ATV in 1984, but his songwriting resume continued to expand with “Nights” by Ed Bruce, “Born Country” by Alabama, “Alright Already” by Larry Stewart, “Lifestyles Of The Not So Rich And Famous” by Tracy Byrd, “High-Tech Redneck” by George Jones, “If I Was A Drinkin’ Man” by Neal McCoy, “Nothing On But The Radio” by Gary Allan and “Size Matters (Someday)” by Joe Nichols.  Other artists who have recorded Byron’s songs include Jason Aldean, Randy Travis, Keith Whitley, Rhonda Vincent, Don Williams, Trace Adkins, Toby Keith, Porter Wagoner, Brooks & Dunn, The Oak Ridge Boys, Ricky Skaggs and Reba McEntire.  To date, Byron’s songs have generated more than 700 recordings, earned 91 RIAA certified Gold and Platinum awards, 10 ASCAP awards, 34 U.S. and Canadian Top-10 chart hits and numerous hits in other global markets.
 
WAYNE KIRKPATRICK
At age 14, Wayne Kirkpatrick moved with his family to Baton Rouge, La.  After a guitar lesson at a Florida Bible camp, Wayne began spending hours after school writing songs and playing younger brother Karey’s acoustic guitar.  Both brothers eventually moved to Nashville, where Karey helped Wayne secure some of his first cuts.  Since then, Wayne has had nearly two dozen chart-topping Contemporary Christian and Pop singles, including “Every Heartbeat,” “Good For Me” and “Takes A Little Time” by Amy Grant and “Place In This World” by Michael W. Smith (the 1992 Dove Song of the Year).  In 1996, Wayne’s co-written “Change The World” by Eric Clapton was featured in the film Phenomenon and earned the 1996 Grammy for Song of the Year.  In 1999 Wayne sang, played and co-wrote eight songs on Garth Brooks’ In The Life Of Chris Gaines project, including “Lost In You” and “It Don’t Matter To The Sun.”  In 2002 he began a longtime collaboration with Little Big Town that yielded hits such as “Boondocks,” “Bring It On Home” and “Little White Church.”  In 2010, Wayne and Karey began working on the musical Something Rotten!, which opened on Broadway in 2015 and earned 10 Tony Award nominations, including Best Musical and Best Original Score.  The show launched a U.S. tour in 2017.

JOE MELSON
Joe Melson grew up in Bonham, Texas.  He began writing and singing his own songs at an early age.  He spent much of his young adult years working at Standard Oil by day then playing high-school dances and local night clubs with his Rockabilly band by night.  In 1957, Joe met and began writing with a then-unknown Roy Orbison.  In 1960, their song “Only The Lonely (Know The Way I Feel)” launched Orbison into superstardom.  The first operatic rock ballad in history, that single was inducted into the Grammy Hall of Fame in 1999.  In 1961, the team created the smash “Crying.”  It became a giant hit for Orbison, was revived as a pop hit by Jay & The Americans five years later and entered the country repertoire via versions by Ronnie Milsap and Don McLean, among many others. Orbison’s single was inducted into the Grammy Hall of Fame in 2002.  In 1963, the duo’s “Blue Bayou” became another hit for Orbison (and, years later, Linda Ronstadt).  Joe’s song catalgoue also includes “Blue Angel,” “Running Scared,” “Lana” and “I’m Hurtin’” (all hits for Orbison), as well as “Run Baby Run (Back Into My Arms)” by The Newbeats and the Glenn Barber singles “Unexpected Goodbye” and “I’m The Man On Susie’s Mind.”  In 2002 Joe was inducted into the Rockabilly Hall of Fame.
 
RONNIE DUNN
Ronnie Dunn was born in Texas, but Tulsa, Okla., became his hometown.  He began playing guitar and performing in Country bands when he was in his teens.  After winning the Marlboro Talent Search, Arista Records expressed interest in him.  The label teamed him with singer-songwriter Kix Brooks, and the two recorded as Brooks & Dunn from 1991-2011.  The mega-duo sold millions of records and was named CMA Vocal Duo 14 times.  The Brooks & Dunn hits “Neon Moon,” “Hard Workin’ Man,” “She Used To Be Mine,” “She’s Not The Cheatin’ Kind” and “Little Miss Honky Tonk” were all written solo by Ronnie, as was “Boot Scootin’ Boogie,” which was named ACM Song of the Year in 1992.  Ronnie was BMI’s Country Songwriter of the Year in 1996 and 1998.  Co-written Brooks & Dunn hits include songs such as “Brand New Man,” “My Next Broken Heart” and “Believe,” which was the ACM Song of the Year in 2005 and the CMA Song and Single of the Year in 2006.   In  2011, Ronnie resumed his solo career as a singer-songwriter with “Cost Of Livin’.”  Ronnie was inducted into the Oklahoma Music Hall of Fame in 2003.

K.T. OSLIN
Kay Toinette Oslin was born in Crossett, Arkansas.  After her father died, she moved with her mother to Houston, where she later attended college as a drama major.  In 1966, she joined the road company of Hello Dolly!.  When the musical returned to Broadway, K.T. remained in the cast.  During the next two decades, she appeared as a chorus girl in musicals such as Promises, Promises and West Side Story.  She also sang commercial jingles around New York and began writing songs.  By 1981, she was signed to Elektra Records and released two singles with modest success.  She also had songs recorded by Gail Davies, The Judds and Dottie West.  By 1987, K.T. had moved to Nashville and signed with RCA Nashville.  She scored big with her self-penned “80s Ladies,” which was named 1988 CMA Song of the Year, making her the first female writer to win the award.  That album also launched the singles “Do Ya” and “I’ll Always Come Back.”  Her second album generated five singles, including “Money,” “Hey Bobby,” “This Woman,” “Didn’t Expect It To Go Down This Way” and “Hold Me,” which earned the 1988 Grammy for Best Country Song.  K.T.’s third album generated the hits “Come Next Monday” and “Mary And Willie.”  She was named 1988, 1989 and 1991 SESAC Songwriter of the Year.  K.T. is a 2014 inductee into the Texas Heritage Songwriters Hall of Fame.

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Barry Neil Shrum named general counsel for Nashville Songwriters’ Hall of Fame

Shrum & Associates’ very own namesake, Barry Neil Shrum, Esquire, was recently appointed to serve as general counsel for the Nashville Songwriters’ Hall of Fame, and to serve as a non-voting member of its Board of Directors.  The Nashville Songwriters Hall of Fame Foundation (NaSHOF) is a non-profit organization dedicated to honoring and preserving the songwriting legacy that is uniquely associated with the Nashville music community. Its purpose is to educate, celebrate and archive the achievements and contributions made by members of the Nashville Songwriters Hall of Fame to the world. 

Induction into the Nashville Songwriters Hall of Fame (NaSHOF) is one of the nation’s most highly prized songwriting honors. Since 1970, nearly 200 of Music City’s top tunesmiths from all genres of music have been enshrined by the non-profit organization, which honors Nashville’s rich legacy of songwriting excellence through preservation, celebration and education. In 2013, NaSHOF realized a long-held dream with the opening of its Hall of Fame Gallery, located in downtown Nashville on the first floor of the Music City Center (201Image result for nashville songwriters hall of fame 5th Avenue South).

NaSHOF chairman of the Board, Patrick (“Pat”) J. Alger III (2010 NaHOF inductee), described Mr. Shrum as a perfect fit:

The Board of the Nashville Songwriters Foundation has patiently and cautiously been searching for a replacement for our longtime legal counsel [David Maddox] who recently retired. As Chairman and the de facto representative that bears the responsibility for our actions and decisions it is especially important to me to find the right candidate. I believe we got very fortunate when Barry Shrum expressed interest in filling that vacancy. He has the right combination of knowledge, experience and personality to fit the bill precisely! We welcome him enthusiastically to our team.

Mr. Shrum expressed equal admiration for his new chairman and for the organization:

I was honored when Mr. Alger approached me about the position.  Pat is in the pantheon of songwriting gods here in Nashville and the writer of one of my favorite Garth Brooks’ songs, Unanswered Prayers.  I am looking forward to serving under his considered and kind leadership.  I can’t think of anything I would rather be remembered for more so than protecting and honoring the rights of such great songwriters like Pat Alger and the other 200 or so inductees.

Mark Ford, Executive Director of the NaSHOF, expressed excitement about the appointment:

I’m excited that Barry has joined the board of the Nashville Songwriters Hall of Fame.  His knowledge of copyrights and their creators, combined with his years of experience in the music industry, are a great fit for our organization.  He’s a pleasure to be around, a delight to work with and someone who will definitely stand shoulder-to-shoulder with us as we strive to honor Nashville’s rich legacy of songwriting excellence.

NaSHOF is currently producing a series of critically-acclaimed weekly television series called The Songwriters which features engaging conversations with NaSHOF inductees, including Gary Burr, Bill Anderson, Steve Cropper, Ray Stevens and many others.  The inaugural season is hosted by NaHOF Board member, Ken Paulson, and is produced at MTSU’s College of Media and Entertainment.  The shows airs three times weekly on Nashville Public Television as well in 10 other markets across the country.

Mr. Shrum accepted the position and took on the role in December of 2017.

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The Plight of the Starving Artist – the CLASSICS Act may provide some relief.

The plight of the “starving artist” is timeless and history is replete with stories of songwriters and artist being exploited for their intellectual contributiWatch Stephen Foster | American Experience | Official Site | PBSons. In the mid 1800’s, when Stephen Foster wrote The Suwannee River, Oh! Susanna, Camptown Races, Jeanie with the Light Brown Hair, and Old Kentucky Home, the 1790 Copyright Act only protected “maps, charts and books” and thus did not extend to musical compositions. The only way Foster could conceive of earning an income from his craft was to sell his sheet music to traveling troubadours and minstrel shows, such as “Christy’s,” that traveled the country. The strategy worked in terms of getting his music exposure, but without adequate protective remedies, it created an environment where unscrupulous and dishonest publishers “bootlegged” his work and sold copies for their own profit. While most of the country knew Foster’s work (even today) because of this exploitation, he died a pauper in 1864 with less than a dollar to his name.  So much for the post-Napster argument that illegally downloading and streaming music actually makes money for its creator by giving it wider exposure!

About 10 years following Stephen Foster’s death, mechanical sound recording technology was developed allowing reproductions of musical performances and thus began a revolution. Just over 50 years following that, transmission of sound waves via broadcast technology was invented and perfected, giving us the “music industry” as we knew it for over a hundred years. Had Foster lived another 20 years or so, he may have made millions of dollars as a result of his creations.

As a result of these nfostertombewfangled and emerging technologies, and at least in partial deference to Stephen Foster’s unfortunate demise, Congress finally passed the 1909 Copyright Act which provided copyright protection for musical compositions, giving them an initial term of 28 years with one 28-year renewal period for the purpose of “prevent[ing] the formation of oppressive monopolies” which might limit those rights. See, H.R. Rep. No. 2222, 60th Cong., 2nd Sess., p. 7. Now, these newly protected musical compositions could be performed and embodied in sound recordings (although sound recordings were still not protected by federal law at this time), which could themselves be performed in broadcasts over the radio waves. It was an exciting time in the music business, which saw the rise of music publishers, record labels, radio stations, Harry Fox and all three performance rights organizations, ASCAP, SESAC and BMI, in that order.

The industry became a powerhouse. The radio stations played the sound recordings, inspiring their listeners to buy the product distributed by the record labels. The performance rights organizations would collect the royalties for performance of the musical compositions, and pay the music publishers and the songwriters. Everyone was happy, or so it seemed. Still there were flaws in the system.  The sound recordings – the the actual performances of a musical compositions fixed onto records – would not receive copyright protection for another 60 years when Congress passed the Sound Recording Amendment of 1971, and even then received only limited rights: derivative, distribution and reproduction. Five years later, the Copyright Act of 1976 created a specific category for sound recordings, and Congress has since given the authors of sound recordings the right to receive digital performance royalties, although they are still not entitled to terrestrial performance royalties, as are songwriters and publishers.

So, prior to February 15, 1972 when the SR Amendment took effect, the performances of the featured artists and musicians on those recordings were not entitled to any performance royalty, but rather were only paid the meager artist royalties that they received from the record labels, if they received anything at all. That deficiency left a significant gap for sound recordings created from circa 1874 until 1972, which were only protected under state and common law regimes – varying widely from state to state if they are even recognized at all – containing divergent scopes of protection, limitations and exceptions. Many attempts have also been made by the recording industry and other stakeholder to urge Congress to pass such acts as the Fair Play Fair Pay Act (H.R. 1836) which would add terrestrial royalties to their list of rights and revenue streams.

As may be expected, this kind of legislative confusion has led to a great deal of state lawsuits as creators of pre-1972 sound recordings attempt to enforce their rights through state courts. In one such case brought by my good friend, Mark Volman of the Turtles, a court ordered SirrusXM to pay almost $100 million to settle a class action lawsuit brought in California, Florida and New York based on state laws governing pre-1972 recordings. In a similar case, the internet service Grooveshark had its business model decimated and was finally forced into bankruptcy as a result of its fight against labels over its use of pre-1972 recordings and whether the Digital Millennium Copyright Act’s safe harbor provision applied.

Such high-profile lawsuits often motivate legislators, who are in turn motivated by what motivates their constituents. As a result, last month, Congressmen Jerrold Nadler (D-NY) and Darrell Issa (R-CA) of the 115th Congress introduced House Resolution 3301, the CLASSICS Act, an acronym for the Compensating Legacy Artists for their Songs, Service, and Important Contributions to Society Act. See, the full text here. The bill has six sponsors, among them is Tennessee’s Representative from the 71st District, Marsha Blackburn.

While the bill addresses the orphan status of pre-1972 gap sound recordings by providing them with the rights currently enjoyed by post-1972 recordings (i.e., reproduction, distribution, digital performance, and derivative rights), it stops short of full federalization of those recordings and continues to ignore the terrestrial royalty issue. The CLASSICS Act is short by today’s standards, addressing only a few key points.  Nonetheless, it is a step in the right direction.  

In short, the CLASSICS Act addresses two of the significant issues raised by the two examples of litigation cited earlier: it makes very clear that the rights of pre-1972 sound recordings are on parity with later sound recordings; and that the DMCA notice and takedown regime is applicable. Notably, Section 1401(d)(1) of the CLASSIC Act “shall not be construed to annul or limit any rights or 9 remedies under the common law or statutes of any State for sound recordings fixed before February 15, 11 1972.” In other words, state law claims are still permissible.

H.R. 3301 is still “only a bill,” and is, as of now, “sitting [t]here on Capital Hill.” As we learned from Mr. Bill in that School House Rock classic written by Dave Frishberg and performed by Jack Sheldon, “it’s a long, long wait while [it’s] sitting in committee,” but a least we can “hope and pray” that one day it’ll be a law!  You can follow whatever progress it makes on Congress.gov.

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Secret Blend of 11 Herbs: Three Things to Know about the 2016 Defend Trade Secrets Acts

By Drew Harris

How delicious are those 11 “secret herbs and spices” assembled by Harland Sanders in 1930 for his popular “Kentucky Fried Chicken” sold at his local service station? It was so “finger lickin’ good” popular that the Governor Ruby Laffoon proclaimed him a “Colonel” and he started franchising his chicken business. But rather than patent the recipe, he chose instead to keep it a “secret” in order to protect it. The KFC Original Recipe is, in fact, perhaps the most famous and notable trade secrets in history.

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In order to protect the ingredients, the secret original recipe, handwritten and signed by Colonel Sanders himself on a now yellowing piece of paper, is held in a special segregated company vault in Louisville, KY, along with 11 viles of the ingredients for good measure. Throughout time, it has only been seen by a handful of employees (all of whom must, of course, signed ironclad pledges of confidentiality). The vault itself, which can be accessed by only two people working in tandem, is monitored around the clock by video and motion-detection surveillance systems.

To further insure that the secret remains so, the 11 herbs and spices are mixed in separate halves – one half by Griffith Laboratories and the other by McCormack – and then combined together all at once by the latter to ensure that nobody outside of the companies should ever know the incredibly lucrative blend.

Many have claimed to have discovered various versions of the Original Recipe, one of which was published in the Chicago Tribune, however KFC maintains that those are not even close. The ability to maintain the secrecy of the Original Recipe is paramount to the business of KFC, and establishing it as a trade secret offers the fast food giant the best protection. If KFC (or their parent company, Yum! Brands) were to have patented the Original Recipe, the recipe would’ve been published, and made available to the public after the expiration of the patent, allowing anybody to copy the secret recipe verbatim, which would dramatically devalue the KFC brand.

The story of KFC illustrates that trade secrets are very lucrative commodity to U.S. companies such as McDonalds, Coca-Cola, and many others. That is why the Defend Trade Secrets Act of 2016 (the “DTSA”) was an important piece of legislation. The DTSA is a powerful tool for companies like them that ferociously defend their trade secrets.

A Brief History of Trade Secret Protections in the United States

Protecting Intellectual Property has long been important in the United States, and indeed internationally as well, however trade secret law has historically taken the backseat to copyright, trademark and patent law on a federal level. Until 2016, with the passage of the DTSA, trade secret law was handled exclusively on a state-to-state basis, with statutory law differing in respect to statutes of limitations, definitions, application, and other relevant criteria. Companies were required to jump through certain hoops established variously by state legislation and court precedent to establish a trade secret.

Some progress was made toward uniformity in 1980, the Uniform Trade Secrets Act was approved by the American Bar Association. Nearly every state that has enacted a trade secret law has adopted the UTSA (New York and Massachusetts being the two states with trade secret law that have not). Another reference is the Restatement of Trade Secrets, which provides a summary of the varying trade secret laws passed in states throughout the US.

In 1996, Congress passed the Economic Espionage act (EEA), the target of which was stopping trade secret theft by foreign governments, individuals, and entities in general. While the EEA did provide a step in the right direction concerning Federal legislation regarding trade secret theft, instead of provide a private cause of action the EEA instead relied on the U.S. Attorney’s office, which was already strained.

Finally, in 2016, the DTSA greatly altered the way in which U.S. companies can seek remedy for trade secret misappropriation and changed the legal landscape of trade secret enforcement in the following ways:

1. U.S. Companies can now hire their own lawyers

Under the DTSA, rather than relying on enforcement actions of the U.S. Attorney General’s Office, companies now can file private legal actions to protect their trade secrets and seek remedies from individuals or companies that infringe, steal or misappropriate them. The DTSA provides the necessary “teeth” to enforce these valuable rights.

As noted above, under the EEA any company in need of litigation regarding the misappropriation of their trade secret had to go through the U.S. Attorney’s office. By allowing the owners of trade secrets the ability to hire their own counsel, companies are in control of their own enforcement of intellectual property. Companies can also seek out lawyers that have a greater wealth of knowledge pertaining to trade secret law, providing them a benefit that a prosecutor in the U.S. Attorney’s office might not afford. Furthermore, the office of the U.S. Attorney juggles myriad cases at once involving many national issues – it thus cannot consistently give a company in need of trade secret litigation undivided attention. If the company hires its own private counsel, they can choose one who has the appropriate work ethic, knowledge and motivation to pursue the case. Thus, companies that take legal action regarding their trade secrets now are afforded the possibility of more attentive, accountable, and (quite possibly) knowledgeable attorneys- at least in the field of trade secret litigation.

2. There is now a federal (national) standard to use for trade secret cases. Much simpler than before.

The DTSA provides much needed uniform definitions for certain critical terms, most notably “trade secret” and “misappropriation.”

The DTSA definition of trade secret, for example, is rather broad. It allows protection of a wide range of proprietary information, specifically: “all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if (A) the owner thereof has taken reasonable measures to keep such information secret; and (B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.” This is very similar to definitions found in prior laws dealing with trade secret, such as the one found in in 18 U.S. C. 1839(3).

Acts that constitute misappropriation are also specifically explained in the DTSA, giving guidance to litigants as follows:

acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or

disclosure or use of a trade secret of another without express or implied consent by a person who—

  • used improper means to acquire knowledge of the trade secret;
  • at the time of disclosure or use, knew or had reason to know that the knowledge of the trade secret was (a) derived from or through a person who had used improper means to acquire the trade secret; (b) acquired under circumstances giving rise to a duty to maintain the secrecy of the trade secret or limit the use of the trade secret; or (c) derived from or through a person who owed a duty to the person seeking relief to maintain the secrecy of the trade secret or limit the use of the trade secret; or

before a material change of the position of the person, knew or had reason to know that—

  • the trade secret was a trade secret; and
  • knowledge of the trade secret had been acquired by accident or mistake.

3. U.S. Companies Can Seize Assets and Freeze Business of individuals or entities that misappropriate their trade secrets (if they can make a strong enough case for it)

In addition to these uniform definitions and the ability to retain private counsel, section 2 of the DTSA granted owners of trade secrets the very powerful, though specific, right to seizures of personal property in order to enforce their rights. They may now act through court order to seize the assets and freeze the business activity of an individual or entity who is potentially misappropriating their trade secret, or disseminating information stolen from that company. This type of civil seizure generally occurs ex parte (meaning only one of the parties to the lawsuit, in this case the plaintiff, is in the court room) prior to a court formally finding misappropriation in the actions of a company against which a claim was filed. The court grants a TRO and seizure order. This seizure, though very useful and necessary in certain situations, must meet a laundry-list of criteria, in order to make reasonably certain that this ability is not used maliciously or in bad faith.[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][i] These seizures are important as they provide previously unavailable legal strategies for protecting trade secrets.

In Conclusion…

The most noticeable effect of the DTSA will be the ability of companies to privately pursue legal action against individuals or business entities that misappropriate their trade secrets. While the ex parte seizures (civil seizures) are exceptionally noteworthy, the instances in which they can be used are exceptionally rare, making them a useful, though seldom-used ally.

The passage of the Defend Trade Secrets Act of 2016 might not have made the front page, but it has radically changed the legal reality for U.S. companies that need to defend the trade secrets their business relies on.

The Entire Language of the Defend Trade Secrets Act of 2016 can be found here.

Drew Harris Drew Harris is a rising junior at the University of Tennessee and an summer intern at Shrum & Associates.  Drew’s goal is to attend law school and possibly practice entertainment law upon graduation.

 

 

 

 

 

 

[i] The following is the criteria necessary to be granted a court ordered ex parte seizure under the DTSA:

– Order following Fed. R. Civ. P. 65 or some other equitable relief would have to be insufficient in order to obtain this order

– Must be immediate and irrecoverable damage done if the seizure is not ordered and carried out

– A denial of the seizure order must harm to applicant, and that harm must: (A) be greater than the harm to the person/entity against whom/which the seizure is ordered; and (B) significantly outweigh the harm done to any third party by such a seizure

– Chance of success of applicant in showing that the person against whom the seizure was ordered indeed did misappropriate or conspire to misappropriate his trade secret is highly likely

– The request by the applicant is reasonably particular as to the property in need of seizure, location, basically the extent necessary under the circumstances

– The person against whom the seizure is ordered would attempt, or be successful at destroying, moving, hiding, or making his property unavailable through other means if he was served a notice by the court

– Finally, the applicant has not already publicized his request for a seizure, which would counteract the purpose of an ex parte/ civil seizure in the first place[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]

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Sorting out the DOJ Ruling and its impact on performance rights

 

The first of the month (August 2016), the Department of Justice issued a summary of findings with regard to two court orders that govern the operation of two of the U.S. performing rights organizations (the “PRO’s”), ASCAP and BMI.  If it stands, the decision will also affect the third PRO, SESAC.

Songwriters and music publishers around the country were horrified with the DOJ findings, as were the PRO’s, with many songwriters claiming that they would now have to refrain from co-writing with songwriters belonging to one of the sister PRO’s.  This article will examine the logic of the reaction by the music community.  Is the proverbial sky falling, or will this event pass into obscurity and irrelevance?  We’ll sort out what all this means in this article.

As an aside, if you were not fortunate enough to tune into last night’s episode of my friends Heino and Scott with The Music Row Show on WSM 650, go to their website and check out the archives, as much of the information we share here was talked about in that radio program.  My appearance and conversation with The Music Row Show made me realize just how confused many songwriters will be about all of this legal maneuvering.  

Background

Before we look at the court orders, referred to as “Consent Decrees,” a little historical background will be helpful.  As I said, there are primarily three PRO’s, ASCAP, SESAC and BMI, and they were created in that order.   The two largest US PRO’s, ASCAP and BMI, make up the majority of the industry.  SESAC, by most accounts, has between 10-20% market share (although it is growing exponentially).

This is because ASCAP and BMI were both created out of controversy and strife and that highly competitive environmental produced some robust and resilient entities.  ASCAP arouse out of the Tin Pan Alley days.  Several of the key songwriters, IRVING BERLIN, VICTOR HERBERT and JOHN PHILLIPS SOUSA, began to see their songs being performed in restaurants, hotel lobbies and other venues, and they realized that they were not receiving royalties from these performances, a right that was first granted in 1897 and then incorporated directly into the 1909 Act.  These famous writers banded together to form the first coalition of songwriters and publisher, the American Society of Authors, Composers and Publishers.

Their efforts may have been received well in the music community, but the entities that used the music did not share that enthusiasm.  Certain NYC restaurant and hotel magnets, namely Shanely and Vanderbilt, questioned whether they were required to pay the composer for performance of a song in their establishments, even though they charged no admission for those performances.  The music, they maintained, was just a side show and not the main focus of what their customers were paying for.

The case, Herbert et al. v. Shanley et al. went all the way to the Supreme Court.  Writing for the majority, Justice Oliver Wendell Holmes ruled in favor of ASCAP and songwriters, saying:

Music is part of the total for which the public pays and the fact that the price of the whole is attributable to a particular item which those present are expected to order is not important.  It is true that music is not the sole object, but neither is the food, which probably could be got cheaper elsewhere.

As a result, ASCAP had the stamp of approval from the highest court in the land.  They started an aggressive campaign to acquire licenses from venues where performances of music occurred, including broadcasters like television and radio stations. 

BMI arose as a direct result of ASCAP’s aggressive licensing activities.  From 1931-1939, ASCAP increased its royalty rates to radio and television stations over 400%, to the point where a group of broadcasters decided to get together and form Broadcast Musicians Incorporated in 1939.  They started signing their own composers and begin licensing non-ASCAP works for their catalog.  After a few years, most radio and television stations stopped using ASCAP music and would only use BMI-licensed music.

BMI and ASCAP have been adversaries ever since.  ASCAP, of course, had the upper hand, since they were first to market and arose out of the Tin Pan Alley environment.  ASCAP did not take kindly to being shut out of the lucrative broadcast market and the two organizations began a decades long fight for the music users.  This conflict ultimately caught the attention of the DOJ, who sued each entity under the Sherman Act (anti-trust) to address their comparative market power and balance the weight of power.  The result of the DOJ’s involvement were the consent decrees that, to this day, govern how terrestrial radio (Either AM/FM) digital rebroadcasts, and/or venues such as bars and arenas, license the performance of compositions.

SESAC, a European PRO at first licensing mostly classical, slipped into the U.S. in 1939 amidst all of this sibling rivalry and began licensing in the U.S., but as a private entity as opposed to operating as a non-profit like ASCAP and BMI.  They are not subject to any consent decrees and to this day remain under the radar, although the DOJ periodically audits them as well.

The ASCAP/BMI consent decrees defining what the PRO’s can and cannot not do – most notably, it requires them to issue “blanket licenses” to certain users.  These have been amended in 2003 and 1994 respectively.  The decrees also require that both entities offer licenses are similar terms and to similar clientele.  Importantly, for this discussion, the consent decree require that the PRO’s license to a user like Pandora one a request for license is made, regardless of whether a rate has been negotiated.  If the PRO’s and the user cannot agree on a rate, it is then presented to the “rate court” set up by the consent decree to decide.  The catch is that while all of this legal wrangling is going on, services like Pandora can continue performing the music.

The Recent DOJ Ruling

The gravamen of this issue happened in 2013 when several large music publishers, SONY ATV, EMI and Universal, among others, withdrew their “new media” licensing rights from ASCAP and BMI, leaving them to collect only their terrestrial right (read broadcasted radio or television).  They did this for a couple of reasons:  first, the consent decree do not allow the PRO’s to negotiate a market rate with digital streaming services; so, secondly, they did it in order to negotiate better deals directly with Pandora.  In 2013, Pandora negotiated a favorable percentage rate with Sony and Universal based on their gross revenues.

With their hands tied and major publishers going direct to digital stream services, ASCAP and BMI had no choice.  Streaming revenues have been increasing for years, and without these major players bringing in revenue, their revenues were decreasing.  So, in short, ASCAP and BMI went back to the DOJ seeking clarification with regard to the consent decrees with regard to operation and effectiveness.  Among other things, ASCAP/BMI ask that the decrees be modified to allow publishers/songwriters to “partially withdraw” their works.  This prompted a new review of the Consent Decrees by the Department of Justice that begin in 2014.  The DOJ released its findings on August 4, 2016 of this month.

The DOJ said that the ASCAP consent decrees doesn’t allow a publisher to withdraw partial shares.  It stated that consent decrees require a PRO “license to perform all the works in [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][its] repertory…” That meant, according to the DOJ, that it could not “rewrite the decree” to let publishers pick and choose how works are licensed and allow fractional shares.  This has great impact on the existing deals already negotiated with Pandora.  Specifically, the DOJ said:

The licensing of works through ASCAP is offered to publishers on a take-it-or-leave-it basis.

Specifically, the DOJ ruled:

1)  That the consent decrees would not be modified or abolished

2)  That the consent decrees to DO NOT allow “fractional” licenses that convey only fractional shares and required additional (read other PRO) to perform the works, i.e, the DOJ interpreted the consent decrees to require “full-work” licensing.

This new and dramatically different interpretation requires the PRO’s to convey licenses to radio, television, bars and digital music services giving them the right to public perform “100%” of their repertoires without the risk of adverse infringement.  This new “full-work licensing” principal applies even if ASCAP or BMI only represent a small fraction of a song’s copyright, which is almost always the case.  The problem, of course, is that ASCAP and BMI do not generally have the legal right to convey 100%!

Ironically, the DOJ findings state that “the current status quo system [used by the PRO’s]. . . has served the industry well for decades and should remain intact.”   This is confusing, since historically the PRO’s have licensed fractional shares, contrary to the DOJ’s findings.  A single song most often is written by multiple songwriters and those songwriters are generally affiliated with different performance rights organizations and only own a fractional interest in that song.  When a song such as All-American Girl, is written by Carrie Underwood, whose performance is licensed by BMI, with two other ASCAP songwriters, traditionally BMI would license 33.33% of the song and ASCAP would license the other 66.66%.  Now, according to the DOJ, either BMI and or ASCAP would have to license 100% of the song and report and pay the royalties for the other songwriters to the other PRO.  Imagine how these historic competitors view that prospect!

Herein lies a big part of this current problem.  If we look to copyright law, as we must, the answers may be clearer.  Under section 201(a), the author of song is the owner of the song.  But as all songwriters in Nashville are prone to collaborate, we have to factor in a second author/owner.  When that happens, the copyright law treats each owner as a tenant-in-common, just like two spouses who jointly own a house.  In other word, each one owns 100%.  So what does that mean?

That means that “[e]ach co-owner may thus grant a nonexclusive license to use the entire work without the consent of other co-owners, provided that the licensor accounts for and pays over to his or her co-owners their pro-rata shares of the proceeds.” United States Copyright Office, Views of the United States Copyright Office Concerning PRO Licensing of Jointly Owned Works (2016).  Of course, the songwriters can alter this default situation through signing a collaboration agreement, but no one ever does because that would “harsh the songwriting vibe.”

Furthermore, in a joint author situation, either author of the work may enforce the right to exclude others from using the work.  So, each author of a joint work “has the independent right to use or license the copyright subject only to a duty to account for any profits he earns from the licensing or use of the copyright.” Ashton-Tate Corp., 916 F.2d at 522 (9th Cir.1990). Accordingly, a joint copyright owner may not exclude other joint owners or persons who have a license from another joint owner. 

But there is another part of this analysis that can’t be ignored, and that is the doctrine of indivisibility.  Under the prior, 1909 Copyright Act, the author(s) could NOT divide the copyright, meaning that if the copyright was licensed, the entire copyright had to be licensed, not just one of the exclusive rights.  So, I would not be able to issue a print license apart from a license to perform the work.  The 1976 Act eliminated this doctrine and effectively made the copyright divisible.  Specifically, Section 201(d)(1) of the Act states that the ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law.  Further, the following section 201(d)(2) specifies that this principle of divisibility applied to each of the exclusive rights – print, adaptation, distribution, reproduction and performance – which could be divided, transferred and owned separately.

Now, for the first time, an author could license only the performance rights.  But more specifically, the author could license only a portion of his/her performance rights.  So, you see, the idea of transferring fractional shares of a copyright, or one of the exclusive rights of a copyright, is actually built into the copyright act.  This is something the DOJ ruling completely ignored in its analysis when it interpreted the Consent Decrees to require the PRO’s to offer 100% licensing of their catalog. 

The DOJ, however, was focused primarily on the user of the music, completely ignoring the creators.  For the user, the DOJ felt it was egregious to have to go to all three PRO’s to get a license to perform one work.  To be fair, the PRO’s have tiptoed gingerly around this issue for years.  A license from one songwriter/publisher to perform a work should, in theory, be sufficient.  That is, after all, the meaning of a non-exclusive license.  The industry has avoided the user aspect of partial rights grants for years, requiring each user to obtain a “blanket license” from all three PRO’s in order to perform each PRO’s catalog (and consequently, glossing over the fact that a license to perform one individual work from the owner of copyright would suffice to perform the work).  In this way, each PRO could distribute the royalties collected on the benefit of their members to each one respectively according to their own algorithms. 

That process may change if the DOJ’s consent decree remains in effect.  Each PRO would have to agree who collects for a particular license, and then credit the other with their share.  This would require each one to adjust their rates accordingly and account to and pay some of the royalties received to the other PRO’s.  While it can’t be stated definitively, one just feels that this process will somehow negatively impact the songwriters and publishers, and not the PRO’s or the venues.

Most people in the industry predict that application of this “full-work” licensing approach will throw the music industry in complete and utter chaos – and they’re probably correct.  But, as I said earlier, all hope is not yet lost.  First, the DOJ gave ASCAP and BMI one year to get their act together and start operating on the 100% licensing principle they outlined.   Second, for perhaps the first time in history, ASCAP and BMI are bedfellows (you know what they say of politics) in that they have agreed to a course of reaction:  BMI is appealing the DOJ’s ruling while ASCAP is lobbying Congress for relief.   ASCAP and BMI both announced that they would join forces to fight this common foe.

The president of BMI, Michael O’Neill, was quoted in the Tennessean in response:

The DOJ’s interpretation of our consent decree serves no one, not the marketplace, the music publishers, the music users, and most importantly, not our songwriters and composers who now have the government weighing in on their creative and financial decisions.  Unlike the DOJ, we believe that our consent decree permits fractional licensing, a practice that encourages competition in our industry and fosters creativity and collaboration among music creators, a factor the DOJ completely dismissed.

For her part, CEO of ASCAP, Elizabeth Matthews stated that:

The DOJ decision puts the U.S. completely out of step with the entire global music marketplace, denies American music creators their rights, and potentially disrupts the flow of music without any benefit to the public.  That is why ASCAP will work with our allies in Congress, BMI and leaders within the music industry to explore legislative solutions to challenge the DOJ’s 100 percent licensing decision and enact the modifications that will protect songwriters, composers and the music we all love.

Most people outside the industry will have no idea how significant it is that both of this PRO’s are cooperating with each other on this issue.  ASCAP’s and BMI’s joint efforts may serve to put pressure on Congress to address an aging Copyright Act and implement some of the recommendations made by the Copyright Office in 2015, namely, the creation of a mega “Music Rights Organization” or MRO that, among other things, licenses all exclusive rights of the copyright owner, including both performance and mechanical rights.  The Copyright Office also recommended an elimination of the Consent Decrees.  U.S. Rep. Bob Goodlatte, R-Virginia, who is chairman of the House Judiciary Committee, is expected to recommend changes to the Copyright Act that could be taken up on the 2017 Congress.

In the midst of all of this activity, SESAC is again quietly biding their time, acquiring Harry Fox (mechanical rights) and Rumblefish (a “record label” including digital performance rights) in preparation for becoming perhaps the first effective “MRO.”

No one truly knows the ultimate outcome of all of this but one thing is certain:  the history of performance rights organizations in America continues to evolve.  The copyright law is very complex and have evolved over the years since its passage in 1976.  That law took almost half a century to pass and there is no reason to believe that a new revision wouldn’t take just as long given the multiple competing and often conflicting interests of various stakeholders.  But patience is not the songwriter’s only recourse here:  write your elected representative in Washington and plead your case, as free speech is the only right that will make a difference in this fight.

 

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Purple Reign: Lessons Learned from Prince

By Morgan Wisted & Barry Neil Shrum

Just over half way through, and already it has been a tough year of losses in the music industry. Glenn Frey, one of the members of my favorite band of all time, the Eagles, kicked off the year early when he passed in January, shortly after the passing of pop icon, David Bowie.  Then, country fans ached greatly at the loss of the “Okie from Muskogee” when the legendary Merle Hagger died on his 79th birthday.  Later, fans of the Beastie Boys bemoaned the loss of John Berry.   Next came the horrifying news of the senseless murder of American Idol finalist, Christina Grimmie, proving that youth is no more an insulator from the Grimm Reaper than is fame. Finally, comes the loss of Prince, perhaps the greatest pop icon of all, who passed suddenly, thereby reclaiming again his self-proclaimed title of the “artist formerly known as . . . .” So, the collective heart of the industry is indeed heavy as the annual list of dead celebrities for the 59th Grammy Awards show grows larger.

In death, we are all equal in our solitude, but for our estates the relative differences are significant.  When celebrities set off for that great entertainment festival in the sky, they often leave behind enormous estates: for example, founding member of the Eagles, Glenn Fry left behind an estate estimated to be worth over 90 million dollars when he passed.  While magazines like People, Rolling Stone, and Time quickly assembled the expected tell-alls in memory of the greatest “fill in the blank” to ever live, these entertainment-oriented glamor pieces focus primarily on the glitz and glitter that was the celebrity.  They rarely explore what happens to the wealth and intellectual property of these great icons after the caskets close.  This unique series will examine all of that and more.

Prince may very well be the prime example of the myriad of legal issues that often surround a celebrity’s passing.  On April 21, 2016, the mastermind behind platinum selling albums and years of successful tours, left this world for the afterworld:  a world he so fondly talks about in his hit Let’s Go Crazy.  Although one can assume that Prince has punched his ticket to “a higher floor” and is currently living in that “world of never ending happiness where he can always see the sun, day or night,” here on the ground floor, his family and estate is shrouded in mystery and darkness that result from an unplanned estate.  As the Prince song explains, “…in this life, things are much harder than in the afterworld.  In this life, you’re on your own.”  Well, that last part may not be entirely true:  there were 700 people who claimed to be related to Prince, so they are not “on their own.”  As it is with many celebrities, Prince’s death opened a Pandora’s box of legal issues that will be sorted out for months and even years to come.

Now, the question that everyone seems to be asking in regard to Prince is, where is the will?  Many, including award-winning filmmaker Ian Halperin, have described Prince as a shrewd businessman who would have most certainly been prepared for his eventual demise.  Others, namely his sister, Tyka Nelson, has filed documentation in probate court declaring that he died intestate, i.e., without a will.

In the U.S., each individual state has its own laws regarding what happens to someone’s estate when someone dies without a will.  Since Prince lived in Minnesota, it will be that state’s statute that determines what happens if Tyka Nelson’s claims turn out to be true.  According to Minnesota law, when a person dies intestate, the estate property is distributed according to the so-called “intestate succession laws,” which is basically a flow chart of descendants. The Minnesota’s Heir Flowchart is available here.  As you can see from the chart, since Prince’s parents and only legitimate son, Ahmir Gregory Nelson, are deceased and he has no confirmed children (at least not yet), the first line of descent is his siblings, meaning that Tyka Nelson and his other five half siblings, John Nelson, Norrine Nelson, Sharon Nelson, Alfred Jackson and Omar Baker, stand to benefit the most from the non-existence of a will.

So it’s best not to be too hasty.  The judge in the probate case anticipated that paternity might be an issue, so he ordered DNA testing of Prince’s blood and opened a period of time to allow such children to come forward and stake a claim.   Several have, of course.  There’s Carlin Q. Williams, who claims that he is Prince’s biological son and the “sole heir” under Minnesota statute.  Marsha Henson, Williams’ mother, swore in a statement that she had unprotected sex with Prince in Kansas City, Missouri, in July 1976, after which she conceived Williams.  Another as of yet undisclosed man in his 30’s claims, through Heir Hunters International, that his mother has several sexual encounters with the pop legend in “the 80’s.”  As indicated earlier, over 700 people ultimately came forward claiming to be in Prince’s blood line, including cousins, half-siblings, children, etc.

This is, perhaps, the most damning result of dying intestate, other than of course the actual death itself.  Good estate planning could have avoided this chaotic Minnesota “gold rush” by designating the intended beneficiaries.  Just as important, if not more, than that, however, is the avoidance of estate taxes.

So, for the first installment of this Law on the Row series entitled Purple Reign: Lessons Learned from Prince, let’s review some some good reasons that a celebrity needs quality estate planning.  When someone such as a celebrity, who has acquired a great deal of wealth and assets, passes away, or in fact anytime a great deal of money is involved, you can expect to see a throng of people seeking their alleged share of it.  As we now see, Prince is no different.  With an estimated worth of $300 million, it will not be an easy quagmire for Prince’s family to navigate, and it be littered with numerous pitfalls and challenges as they traverse it. To date, the journey to peace for the Prince Estate has been littered with lost wills, quickly formed publicity rights acts, a vault of unreleased Prince songs, and the aforementioned 700 people claiming to be Prince’s half sibling! So, at least for now, the issue of “where Prince’s fortune will go” is still a mystery.  That leads us to some of our first lessons from the Purple Reign:

  1.  Settling estate issues without a will is very expensive and time consuming; best to have the issues sorted out before tragedy strikes;
  2. Planning ahead allows a celebrity to structure certain trusts and other legal vehicles designed to reduce and avoid enormous estate taxes; it is estimated that out of the $300 million dollar estate, Prince’s heirs, whoever they may be, will pay upwards to 50% to various governmental agencies, and then even more to court-appointed administrators.
  3. Proper estate planning also reduces the problems we see in the Prince fiasco.  If there were a written will, there’d be no doubt to whom Prince wanted his estate to descend.  As it is, the fight will continue and the legal bills will mount.
  4. Important descendants may not get anything.  If the celebrity marries a second or even a third spouse, will there be anything available for prior spouses and/or children?  Many intestate laws give everything to the current spouse, leaving prior children and spouses out of the loop, a end result that may be intended by the celebrity.

Just as important, if not more so, when you are dealing with a celebrity, is who has control of the the intellectual properties involved, the copyrights, trademarks, any patents, and of course, the rights of publicity.  When no will is involved, these properties are treated just the same as the money and pass according to the state’s intestate procedure.

So, in Part 2 of the series, will explore the issues surrounding Prince’s copyrights, including the fate of those hundreds of songs and sound recordings waiting to be released to the public.  Who owns those recordings discovered in Prince’s vault?  Can the family release them?  Who owns Prince’s publishing.  Can the family terminate the transfer of any of those rights?

Finally, Part 3 discusses the implications of Prince’s post-mortem rights of publicity.  For anyone familiar with this topic, the hastily formed PRINCE act could very well suffer the same fate the one Washington state assembled on behalf of Jimi Hendrix’ estate, which was ultimately upheld in the 9th Circuit, but only after a 13-year, hard fought legal battle.  Although these issues are changing and growing daily, we are thrilled to have you follow along with Law on the Row as we begin to wade through the river of issues created by at the end of the Purple Reign, and explore the ever changing laws surrounding the fate of all things Prince.

morganwisted1Morgan Wisted is an intern at Shrum & Associates and has her own blog at www.silkenraven.com.

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The Cat’s in the Cradle: The adventures of child sensation Maddie Ziegler

 

By Erin Thiele and Barry Neil Shrum, Esq.

From the reality television show, Dance Moms to best-selling Sia album covers (including Chandelier, Elastic Heart, Big Girls Cry and Cheap Thrills), Capezio commercials, to featured judging on So You Think You Can Dance, 13-year old dancer Maddie Ziegler is the hottest teen sensation right now, and appears to be the face of the publicity avoiding singer/songwriter, Sia.

The Pittsburg-native Ziegler began her career performing in Paula Abdul’s reality television flop, Live to Dance, which was cancelled before it ever aired.  So, in 2011Ziegler and her mother made their debut appearance as featured dancers on the Lifetime show Dance Moms, a reality tv show about Abby Lee Miller’s elite competition team.  According to New York magazine writer, Rebecca Milzoff, Ziegler quickly “emerged” as a “polished standout.”  Ziegler begin her foray as the face of Sia in the artist’s video Chandelier, which was released in 2014.

It might seem that her involvement with Sia was a natural next step in her career path, however, it was actually more like being struck by lightning (or in this case, Twitter).  Sia took note of the young dancer’s abilities and informally tweeted to Ziegler, asking her to star in her new video.  At first, as any normal adolescent girl would assume, Ziegler thought the tweet was some sort of prank and didn’t believe that she was being approached by the “real” Sia.  With hindsight as our guide, we now know that the tweet was, indeed, real.  From that rather humble yet fortuitous beginning, Ziegler has now been featured in four music videos for Sia. 

Now Ziegler’s image on the cover of Sia albums is featured everywhere, from Pandora and Sonos, to iTunes and Shazam.  From being a young girl dancing on reality television show to having your photo plastered all over the music scene and everywhere else, Ziegler’s net worth has skyrocketed to well over $2-million. As with all well-placed marketing, using her image is extremely successful at building a brand.  

Her dancing history, combined with her acting abilities, are propelling Ziegler’s current buzz, which only promises to grow louder.  She has been featured as an actor in several Disney videos and television shows, as well as many other network shows.  Ziegler also stars in the upcoming feature film, The Book of Henry, to be release in September, as well as Sister, a full-length movie being directed by her alter ego, Sia.  Last year, Ziegler was named as one of Time magazines “Most Influential Teens,” a title which she continues to build upon.

All of this success is no accident.  It would appear that Ziegler and her mother, Melissa, have had this plan for her life in mind from the day she signed up for the Abby Lee Dance Company at the tender age of two years old.   For the most part (one exception noted later), it would appear from an outsider’s vantage point that her and her mother are doing an admirable job navigating the sometimes turbulent waters of success at such a tender age, even though her mother went through bankruptcy and divorce while most of this was going on.  What lessons can be learned from Ziegler and her mother?

One priority is to comprehend and understand exactly what intellectual properties the child owns and figure out how to protect them.  For Maddie, she possesses not only her rights of publicity, which translate into endorsements and sponsorships, but certain other intellectual assets such as her acting and dancing abilities, which can translate into potential copyrights (choreography is one of the specific works noted as being entitled to copyright in the 1976 Act).  All of these various intellectual properties are licensed and/or exploited through some form contractual arrangement.  In the case of a copyright, a written document is essential to transfer any rights. 

So all you dance moms listen up! You daughter may not be on the album of the next big hit but the likelihood of her being the image for a tights or other dance wear organizations is high. Make sure your contracts are beneficial and legally binding.  Read and understand the contract, more importantly make sure you understand. If you do not, find a qualified entertainment attorney who can help you understand. Don’t sacrifice your child’s legal rights in order to be famous.

Which brings us to the next set of issues related to the age of the child celebrity.  For example, can Maggie Ziegler legitimately enter into contracts on her own behalf, or must she rely on her mother to execute agreements?  Are there ethical and moral issues involved when a parent allows their child to be portrayed in sexually compromising scenes and videos?

With regard to the ability of a child celebrity to sign a contract, each state has different laws regarding the age at which a person can legally enter into a contract.  That age is referred to as the “age of majority.”  Until the child reaches that age, 18 in most states, he or she is considered to be suffering from the “disability” of being a minor.

This has serious implications for the parent who signs on their behalf.  If a parent enters into an agreement on behalf of the child without taking appropriate steps have that “minority” status removed, the child can repudiate the contract when they reach the age of majority in certain circumstances.  In that instance, the parent may become liable for any of the obligations undertaken on behalf of the child celebrity.

Brooke Shields is a shining example of what can happen if this issue is not carefully considered:  In 1975, photograph Garry Gross entered into an agreement with Shields’ mother to take photographs of the 10-year old Brooke for Playboy Press.  Later, in 1983, Brooke was embarrassed by the exploitation of the photographs, and sought an injunction against the photographer from further exploitation.   Even proper execution of a contract by a minor’s parents can cause them great grief later in life. 

Similarly, if the proper steps are not taken to enter the contract, the child may be able to simply repudiate the contract when he or she reaches the age that a state declares them to be an adult.  LeAnne Rime sued Curb Records to repudiate her deal signed by her and her parents in 1995.  Curb sought removal of her disability through Tennessee Courts, since the forum selection clause of her contract listed Tennessee as the choice of law.  Rime claimed, however, that she was a Texas resident at the time and therefore the removal process should have occurred in her home state of Texas.  The court disagreed with Rimes and she ultimately renegotiated her contract with Curb, which may have been the ultimate end game anyway.

In many states, Tennessee (§29-31-101) for example, the so-called “emancipation” of a minor can be performed by certain legal proceedings such that the child can enter into the contract on his or her own behalf.   These procedures sometimes involve the appointment of a guardian ad litem to review the proposed agreement and “bless it,” or in some circumstances the court itself may be the only review required.  A decree is then issued that “emancipates” the minor and removes the disability.  Some states, including Tennessee, allow for a “blanket” type decree, that empowers the minor to do all things necessary to further their career, such as entering into contracts, suing and being sued. 

There is another very real concern the laws address with regard to child celebrities, and that is the money earned while they under the age of majority.  Many states, among them Tennessee, California and New York, require that a certain percentage of that income be placed in a set-aside trust for the child until they obtain that legal age.  But that is, perhaps, a topic for a later blog.

Which brings us to the more delicate issue of morals and ethics.  Maddie appeared in a skin-colored leotard in Sia’s Elastic Heart video opposite a 30-year old male dancer, Shia LaBeouf, who was wearing nothing but boxer-length shorts.  According to Rolling Stone, the two dancers were “cage fighting” in an attempt to portray Sia’s two “warring self-states.”  The release of the video immediately set of a viral barrage of complaints about sexual prevision and pedophilia, which Sia claimed she “anticipated.”  One fan on Twitter tweeted that the video “Smacks of child molestation.”  For herself, Maddie explained that the director and Shia kept insisting that she “bite him harder” and “slap him harder.”

Music videos have always “pushed the boundaries” of what is acceptable, often inspiring trends in popular culture that are outside the norms of society.  Research over the years has drawn a direct correlation between certain types of music lyrics and videos and undesirable behavior and psychological impact in children.  See, for example, Impact of Music, Music Lyrics, and Music Videos on Children and Youth, Pediatrics, Nov. 2009, Vol. 124, Issue 5.  I want to make it clear here that I am not condemning or passing judgment on Maddie and her mother.  My intent is to point out that in certain situations, the child celebrity needs the parent to make the critical decision more than ever.

 If one thing is clear about child celebrities, it is that if they have loving and supportive parents who help them lead balanced lives, they are likely to make valuable contributions to society.  If they don’t, the stress placed upon these teen sensations usually leads to all sorts of problems such as regression, depression, ala Lindsay Lohan, drug and substance abuse, ala early Drew Barrymore, or even worse, suicide, ala Dana Plato.  Parents of child celebrities should make time for them to be “normal” children, helping them to draw the appropriate lines between who they are as the child in the family, and who they are as the “star.”  For every example I can give you of a child star “gone bad,” I can give you two examples of child stars who became well-adjusted adults who are still performing and contributing greatly to the benefit of society, ala Marie Osmond and her Children’s Miracle Network.

History is replete with “momangers” who run, and sometime ruin, the careers of their children.  Just as frequently, an overbearing father can be the source of stress for a child celebrity.  Most often, those stories end in years of grief for their children, who may never overcome the psychological struggle. 

A word to wise “dance mom” or dad would be to brace for a long journey, and prepare early only to be the supportive and loving parents, taking every opportunity you have to cherish your child and create normal experiences for them outside their chosen craft.  Most of all, don’t become greedy or vindictive.   Lindsay Lohan’s parents often fought out her many troubles in the media, which will most certainly fuel the flames.  That’s not good for anyone.

Finally, it can help to find trustworthy professional advisers – legal, financial and even psychological – that can steer you clear of problem contracts and other situations that can cause grief.  In short, be a good parent and carefully decide what your goals are, involving your child in those decisions.  Sometimes the tried and true methods never change.  

  

A special thanks to my intern Erin Thiele for her helpful contributions to this piece.  

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Direct Sound has success at NAMM in the Music City Center

A special thanks to my client and friends at Direct Sound Headphones, who made the short trek from their headquarters outside of St. Louis, MO to Nashville to be a part of the show.  Nashville was hosting the  prestigious annual event for National Association of Music Merchandisers for the second year now.

In the photo I snapped, to the right, the president of Direct Sound, Steve Rois, is being interviewed about their new product, the HPA EXW-37 headphones with a wireless range and audio fidelity that surpasses anything else in the industry.  According to Jay Leopardi, a principal partner in Direct Sound, “These are the only wireless headphones on the market that do not suffer from a delay in transmission. “Steve Rois at NAMM

I am proud of my client and their product for several reasons:  first, the focus of their company is on prevent hearing loss using passive noise reduction technologies; second, the headphones feature modular and component parts that can easily be ordered by the consumer and replaced when they wear out; and finally, they are manufactured here in the U.S!

In addition to manning their busy NAMM booth, Direct Sound, Telefunken and NAMM teamed up for the second time to provide headphones for NAMM’s Tec Tracks Learning Center, where dealers could come and hear the latest insights on product promotion and sales from industry experts.

Direct Sound Summer NAMM 2016

Telefunken THP-29 at NAMM’s Tec Tracks

Because of the high noise levels on the NAMM floor from the exhibits, NAMM chose the Telefunken THP-29, made by Direct Sound, as the headphone of choice to let attendees hear the audio programs with the least amount of distraction.

Direct Sound has been in business for almost two decades, which in itself is a testament to the quality of their product.  But you should keep an eye on the company in the upcoming months, as it has been making several impressive endorsement deals and will be releasing a fantastic new product within the upcoming months.

Congratulations on a great show guys!

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AMFM Entertainment Cuts Electronic Dance Music Deal with Mogul Boys Production

For many years now, I have represented Freddie May in his various endeavors, including his production company Starpath Productions. About 10 years ago, Freddie started working with a young female artist living in rural Kentucky, Anne Marie Riney. Ann Marie had a passion for electronic dance music. Drawing from his experience as a DJ in Southern California, her passion fit squarely into Freddie’s wheelhouse. The two teamed up to form AMFM Entertainment (the name is an amalgam of their initials) and focus on what they dub “Pop/EDM” music.

Freddie has extensive experience in the music business, beginning his professional career in late ’60s Hollywood when his band The Power Plant was discovered and signed by the renowned producer Jimmy Bowen, known at the time for his work with Frank Sinatra (of course, Bowen would later go on to make his mark on country music, producing such notables as Reba, Garth and Strait, among others.

In the early ‘70s Freddie was signed as a solo artist to RCA Records where he performed on the pop music shows Boss City and Groovin’. He also worked in TV as a co-host and associate producer of the show The New Sound. During these years, Freddie also hosted and produced his own syndicated radio show called The Cosmotronic Quadrasonic Circus (The Quad Ear Show). Toward the end of the decade, when disco was growing in popularity, Freddie transitioned to became a popular dance club DJ in Southern California’s most successful clubs and continued doing this throughout the 1980s. By the early ‘90s Freddie relocated to Nashville where he reconnected with Bowen and worked in the A&R Department at RCA Nashville.DSC_0181

For her part, growing up in rural Kentucky far from the epicenter of any form of music,,Anne Marie nonetheless knew from an early age that she wanted to be a professional singer and entertainer:


“I have always been completely dedicated and passionate about singing, knowing exactly what I wanted to do. People assumed I was living a fantasy, as children often do, and that there was no way a little girl could know her life’s work at such a young age.”

Freddie recognized her vocal talent and intense passion, and Anne Marie immediately related to his vibe and \expertise. the two began the crucial development process and have been a dedicated team ever since.

Mogul Boys’ Geoff Sanderson recognized the potential for this new form of music and, together with the other members of the multi-faceted entertainment company, sought to work with and develop the talented duo.  Geoff made time between trips to Europe and elsewhere driving in his Masarati club to negotiate and sign a management deal with the team to propel their career to the next level.  Anne Marie can be seen featured on the home page of the Mogul Boys website.  The team plans to have a launch party soon, so stay tuned for details.

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Leopardi Featured on Forbes!

BBBKudos to my good friend and old client, Jay Leopardi, one of the foremost branding experts in the country was recently featured on Forbes.com in an article by contributor George Bradt.  The article is titled The New Reality of Social Media: Engaging your Audience Where They Are.  The article highlights Jay’s wealth of experience in the art of branding.  “A brand is more than just an identity; it’s a promise from a company to its consumers. . .,” Jay is quoted as saying.  Known as the “Bad Boy” of branding – his company name is Bad Boy Branding – he has helps artists such Mayra Veronica, Cedric the Entertainer and Blair Underwood with their branding needs, not to mention almost every major car dealer in the country.  Jay always cracks me up and his humor comes through in this article when he’s quoted as saying “you can’t just smash blast anymore.”  True that.  Good work buddy!

jay5

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