***Please Note: No legal advice is being given in this interview. Any need for individualized legal advice should be discussed with your own counsel.
EA: When did you start in the entertainment business as a lawyer?
Tormey: I started work as a litigation associate on September 14, 1987, with the law firm of Pryor Cashman Sherman & Flynn in New York City. I was admitted to the Bar in New York, and California, in 1988, and in The District of Columbia in 1989.
My transition to entertainment transactional legal work began when I accepted a post as Counsel to The Walt Disney Company in 1990. Thereafter I started a tour of duty as Senior Counsel and Senior Litigation Counsel to Miramax Films in 1994.
I founded my own law practice after I left Miramax in 1996. I have maintained my own law practice for over 15 years.
As far as being in the entertainment business generally, that started when I was a young child in the 1960’s. I grew up on tour with my folks – Dad, an actor and a dancer – Mom, an actress and a model. My father continues his career as a film and TV actor in New York City, and my mother is his biggest fan. My own artistic pursuit was as a rock musician in the 1970’s, 1980’s and 1990’s. None of the above are easy pursuits in the entertainment business.
EA: To potentially become a client of your firm, what do you look for in an artist?
Tormey: It’s probably more important to ask what the prospective client looks for in the lawyer – with background, experience, and accessibility being some of the foremost concerns. The prospective client should also make sure that the lawyer has an “AV” rating with the Martindale-Hubbell Lawyer’s Directory, and should make sure that the lawyer has no past history of public professional discipline in the state or states within which the lawyer practices.
As for what I am looking for at the outset, the prospective client has to have an actual and specific need – that is, one or more specific tasks in mind, appropriate for the lawyer to handle. The artists with whom I work, by the way, are not only musicians. I also handle film, television, publishing, Internet, modeling, photography, dance, performance art, fine art, and various other types of artistic and media matters.
Incoming inquiries to an entertainment lawyer generally cluster within three different categories: (A) transactional work, (B) “project placement” work, or (C) litigation.
(A): Transactional work usually entails an artist who has been offered a proposed contract. The lawyer’s tasks in that case would therefore likely include advice and counsel, document review, drafting, editing, negotiation, communications to third-parties, and ideally, closure of the agreement. That said, some of those proposed agreements close, and others sometimes do not.
(B): “Project placement” work describes endeavors to place material with professional entertainment industry recipients. Record labels and publishers, for example, often require that submissions of material be made through an entertainment lawyer representing the artist.
(C) Litigation basically means a lawsuit, an arbitration, or some other legal process. Oftentimes adverse matters can be resolved short of formal proceedings, though.
When you ask me what I look for in an artist so as to become a client, I assume that you are referring to (B) – music project placement work. In this respect, I need to hear the music intended to be submitted to the label or other professional third-party music industry recipient. I need to see how it is packaged. I need to be assured that the material is viable. I need to be sure that it is material to which I can attach my name and the name of my law practice. As an officer of the court and a member of the Bar, I have to be careful that the material is neither violative of laws nor likely to offend its intended recipients. All that said, my threshold reaction to the material can’t be interpreted as an indication of what the market itself may later do with the same material. It is difficult for any artist to place a “spec” project with any professional industry recipient, even when the artist seeks to do so through counsel.
EA: What are the responsibilities of an entertainment lawyer?
Tormey: Please see my answer to the question immediately above.
The responsibilities of an entertainment lawyer, are the responsibilities of any lawyer. We are licensed by the state or commonwealth in which we practice. Each jurisdiction has a strict set of laws governing the conduct of lawyers that practice within it.
There are many rules to which the lawyer must adhere. The rules include maintaining the strict confidentiality of client communications, and serving as the client’s zealous advocate in a manner unaffected by any outside interests, are among them. In other words, some of the main responsibilities are loyalty, and care.
EA: What methods or steps should a musical artist or writer follow or take to protect their project from copyright infringement?
Tormey: To some degree it depends upon the type of material, and the content of that material. There is no “one-size-fits-all” solution – no cookie-cutter solution. You have to study the material first, to really know.
Though it will sound pedestrian to some, the first thing that should happen, is that the artist should actually complete the work – including its labeling and packaging in the form as it is intended to go out. Protecting an inchoate fuzzy set is much more difficult than protecting a fully-articulated item.
Next, ignore any notion that the “poor man’s copyright” is a smart thing to do, or rely upon. It’s not. Self-mailing one’s work should be considered about as contemporary as Adlai Stevenson, or the first production-run of Milton Bradley’s “Twister”.
Next, consider that a plaintiff is normally prevented from bringing an action against a defendant in a United States federal court litigation for copyright infringement, unless the work is first filed, or “registered”, with the U.S. Copyright Office. See:
Next, consider that the two main things a plaintiff in the United States must prove as against a defendant in a federal court litigation for copyright infringement, are: (A) “access” and (B) “substantial similarity”. Therefore, keeping a perfect written access log reflecting the identities of all who receive or view the work, is critical – as well as keeping a perfect written record of who saw which draft of it, when. You would be shocked at how many people fail to do that. That failure alone could lose a plaintiff an otherwise-winning infringement lawsuit.
The intellectual property laws are derived from the real property laws. Artists should consider themselves akin to goldpanners in the Wild West years. Normally a goldpanner would stake a claim to a property by putting a fence around it, and perhaps by putting a few signs up on the perimeter, in addition. The copyright equivalent in the modern day would be putting a textual copyright notice on your work, thereby warning others not to poach it. The goldpanner might also file a claim to the property down the road with the county recorder of deeds. In this respect, I think of the U.S. Copyright Office as akin to a county recorder of deeds – a place where you can stake your claim and put it on the public record, thereby warning others to not trespass on what you believe to be your property.
Naturally there is a lot more to it, than the above. The above is a good start.
EA: The U.S. Copyright Act and U.S. Copyright Office state that once an artist applies for copyright protection, the protection is automatic. However, I’ve recently read a formal copyright creates a public declaration of ownership – what does that mean?
Tormey: First of all, there is an assumption embedded in that question which is not correct. The protection is automatic at an earlier time than that. The protection is automatic as soon as the work is reduced to a tangible medium of expression. Please see my above answer, and also my article at:
Next, there’s no such thing as a distinction between a “formal copyright” and an “[in]formal” copyright. Rather, a copyright either exists in a work, or it doesn’t. It’s a “yes”, or a “no”. A digital thing. A “1”, or a “0”.
As a practical matter, you could create a work and not tell anyone about it. A number of authors do that. The copyright in that work still exists, as of the moment the work is reduced to a tangible medium of expression. Yet if that work has been hidden from the rest of the world by the author, then the rest of the world really hasn’t been constructively warned not to infringe it. Moreover, how could the rest of the world infringe it – take from it – if it has never been published? So some practical problems arise when you consider the possibility of such a “hidden work”.
If the author files a work with the United States Copyright Office in Washington, D.C., then that author has thereby made what you might call a “public declaration of ownership”. Yet in the vernacular sense at least, the author would also be making a “public declaration” of ownership if he or she self-published the book and affixed to it the textual copyright notice inscription reading:
“(c) 2012 [Author’s Name]. All Rights Reserved.”
The definition of property is the right to exclude others. Intellectual property follows real property. When you say you own a work, you are also telling the listener that they do not own it. When you say so publicly, that is a public declaration. In my view, governmental filing is one way to make a public declaration. So too is publication of the statement itself. If someone publishes a work and then files a work thereafter, the “public declaration” is actually made at the time of publication, as I would interpret it. The Copyright Office filing would give advantages to the author extending beyond the value that the public declaration alone might have:
EA: If any artist has an entertainment lawyer, is it necessary to have an agent or manager?
Tormey: It depends upon the circumstances. In theory and in the abstract, none of those roles are absolutely necessary. In theory, an artist could become successful and self-sufficient without any of the three – lawyer, agent, or manager.
The lawyer is essential if the artist expects to sign agreements or otherwise take actions potentially compromising the artist’s pre-existing legal rights. The music business can be a legal minefield.
The lawyer may also be necessary, at least in the mind of the artist, as and when record labels and publishers tell the artist that they will not consider the artist’s material unless routed through an entertainment lawyer representing the artist. Others call that kind of work “demo shopping” or “song-plugging”. I call it “project placement work”, as described above.
To simplify, a (talent) agent is a person (or entity) that solicits the artist’s employment. In many jurisdictions such as New York, California, and Florida for example, a talent agent must be licensed by the state just like other employment agencies might. Particularly, New York State imparts the regulatory responsibility over talent agents, to the New York City Department of Consumer Affairs. The rules for literary agents, on the other hand, are different and more permissive than the rules governing talent agents. The main reason why talent agents are licensed, is due to the historical abuses of artists that occurred resulting from unlicensed agents taking unfair advantage of the artists.
“Manager” is the trickiest definition. In theory a manager can be a personal manager that counsels the artist on his or her career. The manager could travel with the artist. The manager could read scripts or listen to demo recordings for the artist. The manager might even get coffee for the artist. Yet oftentimes the manager acts as a talent agent without a license, and that can cause some legal and other problems. It is apparently difficult for many managers to avoid the temptation of soliciting their artist-client’s employment in jurisdictions wherein they are not supposed to do it.
A lawyer may not work for a percentage. But a manager might. An agent might. The issue that an artist needs to consider at the outset of his or her career, is, how many percentage-interests can the artist really afford to give out to different people at the front-end? If too many representatives become entitled to collect the artist’s income and deduct percentages, there might be little if any money left to trickle-down to the artist at end of day:
Moreover, the artist percentage deal with a rep basically means that the artist is betting against his or her own career. After all, the only time when the rep percentage deal is a good artist bet, is if the artist’s career fails – because in that case, the artist doesn’t owe the rep much or anything for the rep’s time spent. If, on the other hand, the artist becomes wildly-successful, the artist could end up paying two or three different reps 10%, 15%, or 20% for opening envelopes, fielding calls, or even just sitting on the couch. There is a huge difference between hiring someone on a commissioned basis, versus hiring someone for their time spent. The motivational behavior curve is totally different, as are the economic consequences to the artist.
EA: How important is it for an artist to join ASCAP?
Tormey: It depends upon the circumstances and the timing. The American Society of Composers, Authors, and Publishers (ASCAP) is one of three well-known “PRO’s” or “Performance Rights Organizations”, with which songwriters and musicians interact here in the United States. There is also Broadcast Music, Inc. (BMI), and SESAC (formerly known as the “Society of European Stage Authors and Composers”). ASCAP and BMI predominate in the PRO market. Typically the artist would sign up with only one of the three.
The main thing to keep in mind, and to simplify, is that so-called “music publishing” income is principally comprised of four different types of income-streams: (A) mechanical, (B) synchronization, (C) performance, and (D) print. ASCAP, BMI, and SESAC are the societies which a songwriter or music publisher may use to collect and administer performance income – for example, when a song is “publicly” performed on a juke-box, at a sports stadium, or in a music hall. The PRO’s monitor public performances of music throughout the U.S. Pursuant to some formulae, they pay out public performance royalties to the rights-holders of the performed songs. The payments are usually much smaller than the rights-holders expect.
It’s not an absolute economic necessity important to join ASCAP, BMI, or SESAC prior to the time when the artist’s music is actually being publicly-performed. However, it is important for the artist to become familiar with and interact with these PRO’s, as early in the artist’s career as possible, if only for the seminars, gatherings, and other information alone. PRO’s are artist-oriented organizations and can be valuable resources for any artist at the beginning of his or her career.
EA: Will copyright laws protect a musical artist’s work internationally?
Tormey: That is probably too difficult a question to answer within the scope of a single article.
To simplify for now, the United States copyright laws protect the artist’s work in the United States. Beyond that, there are treaties and understandings with other countries which may extend certain types of protection beyond the fifty states.
However, it would likely not be in the artist’s interests to rely upon treaty-oriented or comity protection alone. Some countries in other parts of the world are notorious for providing safe havens to copyright infringers, for example. There are embargoed countries. There are countries with which the United States does not have treaties. There are countries with which the U.S. has treaties, but not real reciprocity in terms of intellectual property protection.
The only safe way to evaluate copyright protection internationally, is to do so country-by-country. In other words, if the work is to be published in eight different countries, then protection of the work needs to evaluated through eight different copyright-law lenses. Though other countries share some copyright law precepts with the United States, there are also many differences. It is good for U.S.-based people and companies in the entertainment business, to have relationships with local counsel in countries of particular likely importance in the arts and entertainment field – in the European countries, particularly.
EA: How important is it for an artist to obtain trademark protect[ion] on a stage name, group name, or album name?
Tormey: In certain circumstances it may be important to claim trademark or service mark protection in a stage name, group name, or album name. Yet this is usually a much tougher and more expensive proposition than claiming copyright in a song, for example.
Most names in use have a dictionary-word root and have been used by someone else before, in one form or another. The same is true for most acronyms. It is actually very difficult to find, choose, and “clear” a trademark or service mark. Most marks have the risk of competing claims already attached to them. There is very little new under the sun.
In theory, trademark or service mark rights are established as a result of use alone. In other words, as is the case with copyright, you don’t necessarily need to file your claim with a governmental office, to own the intellectual property referenced in your filing. Yet in some cases artists and bands actually do file trademark applications with the United States Patent and Trademark Office (USPTO). In some cases, parties will litigate over stage names, group names, or album names.
Most artists do not end up filing trademark or service mark applications for stage names group names or album names, because the costs of doing so correctly would be too high. Marks should be searched and “cleared” before filing, and the searches themselves can be expensive.
The only marks that an artist should consider registering with USPTO, are those that are certain or likely to generate revenue. There are risks to filing. Filings are public and can sometimes evoke adverse claims from third-parties, for one thing.
EA: Who is responsible for making sure that the artist is receiving all royalties due on work created?
Tormey: There are many different answers, since there are many different situations wherein an artist may receive royalties. The answers could include:
-The lawyer who drafted or negotiated the agreement providing for a royalty payment. -The artist’s own diligence in monitoring the royalty statements, if any. -The artist’s manager, personal manager, personal assistant, or agent. -The artist’s business manager. -The artist’s accountant or auditor. -The artist’s music publisher. -The artist’s Performance Rights Organization. -The artist’s collection agent or agents. -The payroll company. -The company or other paymaster: record label, studio, production company, distributor, network, cable channel, or book publisher. -The union or guild, if any.
However, in the final analysis, it is up to the party contractually-obligated and legally-obligated to pay, to do the correct thing, follow the contract, follow the law, and pay on time. When they don’t, we see conflict, audits, and sometimes litigation. See:
EA: Who holds the copyright in music created – artist, composer, record company, publisher, or all four?
Tormey: It depends upon the circumstances. An artist as author and composer who just completed his or her work on his own and rendered it in a tangible medium of expression, owns 100% of the copyright in that work, assuming no extenuating circumstances requiring otherwise.
The U.S. Copyright Act requires that transfers of interest in that copyright, are only valid if in a signed writing.
So your question is answered by the answer to another question: What rights, if any, did the artist subsequently part with contractually, after the work was created? There are three possible answers – “none”, “some”, or “all”.
Copyright in music should be thought of as not a single strand, but rather as a bundle of rights. Most significantly, the copyright interest in the “song” or “composition” (often commemorated by a USCO Form “PA” which stands for “Performing Arts”) – is a different interest than the copyright interest in the “master” or “sound recording” (often commemorated by a USCO Form “SR” which stands for “Sound Recording”).
In the paradigm of the traditional record label deal, the label’s form documents would often purport to require that the label own 100% of the masters, while on the other hand “allowing” the artist and/or his or her publisher to own some or all of the “publishing” or composition copyrights. That distinction still confuses many people, to this day. And you would be surprised at how many artists still inadvertently sign away their “publishing”, for a song.
EA:. What advice would you give to future entertainment lawyers?
Tormey: There’s a lot – more than I could impart in a single interview answer. But the two basics are: (A) Ignore anyone who tells you that your career choice can’t be attained and maintained; and (B) Be careful. Always.
The third basic, is (C) Don’t be afraid to evolve, particularly in connection with new technology. Any technology which makes it easier to manipulate and route documents and text, should be seriously considered.