I screwed something up!

Back in my post “Fun with Indemnification“, I used this phrase in my English translation:
You don’t ever pay me damages for any reason.

This was a bit of an overstatement. Just because the indemnification is not explicit in the contract, that doesn’t mean it can’t be invoked. (yes, that was the simplest I could make that statement.)
If the licensor did something malicious with the licensed music, and you were sued for that – you would probably be fine. The licensor did the awful things.

Which brings us to the next bit! If the contract says nothing about an issue, it is up to a judge to figure that out.
So, asserting (as I did in my English Translation) the negative case because of its absence is not correct.

I’m going to say it was for dramatic effect. :-)

This post may have been assisted by someone who may be an actual attorney. I will say nothing in the positive or negative sense about that.

Fun with indemnification!

I am Not a Lawyer

I am not a lawyer, but I do deal with a LOT of contracts. Today we are looking at a contract from an unnamed US cable television channel, and why it is awful. Here’s the excerpt:

Licensor shall indemnify, defend and hold harmless Licensee, its officers, directors, consultants, employees, successors, licensees, agents and permitted assigns from and against any claim, demand, action, damages, loss, expense (including reasonable attorneys’ fees) and other liabilities arising from actions brought by third parties arising from any of the following: (a) any breach of any of the representations, warranties or agreements made by it hereunder;
(b) a claim that the use of any or all of the Licensed Material infringes any intellectual property right(s) of such party; and (c) any use of the Licensed Material consistent with the terms hereof. Licensee shall promptly notify Licensor of any such claim. Licensor shall bear full responsibility for the defense of any such claim.

blah, blah… Let’s simplify it a bit.

Licensor shall indemnify defend and hold harmless Licensee, its officers, directors, consultants, employees, successors, licensees, agents and permitted assigns from and against any claim, demand, action, damages, loss, expense (including reasonable attorneys’ fees) and other liabilities arising from actions brought by third parties arising from any of the following: [because of]
(a) any breach of any of the representations , warranties or agreements made by it hereunder;
(b) a claim that the use of any or all of the Licensed Material infringes any intellectual property right(s) of such party; and
(c) any use of the Licensed Material consistent with the terms hereof.
Licensee shall promptly notify Licensor of any such claim. Licensor shall bear full responsibility for the defense of any such claim.

In English this time:

I pay you damages if I lied or screwed up on this agreement or forgot something. I pay you damages if someone claims ownership to my music. You don’t ever pay me damages for any reason.

Okay, now it is easy to understand… and clearly awful. This is asymmetrical indemification. If something goes wrong, I pay you – never the other way around. The best thing to do in this case is strike the entire clause. This works fairly often.

The next best thing is to alter the clause

  • from “any breach” to “any breach… resulting from gross negligence”. This way, if you forgot that your bandmate actually holds 20% of the copyright to the piece, you won’t get financially smashed into the dirt.
  • from “a claim” to “a valid and legitimate claim”. This way some yahoo can’t just “claim” that they own your music… resulting in financial smashings again.
  • to include reciprocal indemifications where they pay all of your fees if something goes wrong.
  • other stuff: there are various other things you should probably change as well, but I’ve gone on too long already.

This works almost never. Indemifications can be dangerous and their lawyers know it. People sign contracts like this every day. People are also screwed by contracts like this every day. Please read and understand any contract before you sign it!


Are you a lawyer? Did I screw something up? Let me know!
kevin@incompetech.com

More progress on the Bad Claims Front

I finally got a hold of someone at Altafonte music, a company that was claiming about a dozen of my pieces (from what I can guess – on a few thousand videos). They were rejecting disputes without review… and that’s never a good thing.

Happy ending! As of this morning they should have released all of the claims!

Not so happy part… I think they’re keeping all of the money. I have no idea how much it is. Certainly not enough to worry about.

Big thanks to Miguel for getting everything taken care of so quickly!

Untangling the False Claims

A bunch of people have written me recently about their YouTube videos getting claimed by TuneSat. So I called TuneSat, and I sent Mark over at TuneSat some information about a claim.

The assets were attributed to another company that uses TuneSat; Audiam. Mike from Adium found my music, stopped the account, and released all of the claims. I’m still not sure who uploaded my music claiming to represent me… but I’m working on that with Mike.

The good news is, all of the erroneous claims that looked like they were coming from TuneSat should all be released.

——

UPDATE! This was caught very early by you all! There were only 481 claims total (most of them being for “The Complex” and “Call to Adventure”). The claims were only active for about a day. All is well again!

How to: The Music Business

Flock of Giraffes
I get a lot of requests for people wanting to know how to “get into the music business”. Some people are honestly confused – which is understandable, because I’m actually IN the business, and I am still confused. This document is for all of the people who make music – and want to make music more.

This document is not a happy/flowery/you-can-do-it document. But, I understand negativity turns people off, so I’ve included the positive (and very very wrong) version of things as well.

READ THE FULL ARTICLE

APRA and the money.

APRA
APRA (Australian music rights association) contacted me yesterday. They have money for me because a TV station aired a program that had my music in it. $460AUD.

The producers of the show correctly licensed the music from me, and no one had to pay for the use… but the TV stations have an agreement – they pay a yearly fee, and that gets divided up among the music rights holders and disbursed through APRA.

I asked if they could give the money back to the station. They said ‘no’. So, now I’m trying to get the money to give back to the station that didn’t need to pay it in the first place.

Here is exactly how simple that is:
1) Sign up for APRA*
2) Collect money
3) Send money to TV station

*Signing up for APRA is a problem. It isn’t difficult, but it is a problem. When you sign with a rights collecting agency like this, they get to do things for you. Things that I don’t want done. For example, as a “benefit” they get to demand money for the use of my music. Wherever they think they can legally get the money, I’m sure they try. That is their job.

Lucky for me, I can “opt out” of a variety (possibly all) of their collection efforts.
– public performance
– broadcasting
– streaming
– live performance
– film
– background music
– radio
– tv

In order to keep the CC license, I would need to opt-out of everything… including the things where they are already collecting money!

Now it looks like this:
1) Sign up for APRA
2) Opt out of everything**
3) Collect money
4) Send money to TV station

**Opting out requires 3 months’ prior written notice – to be effected on July 1 or January 1. The July deadline is gone. So I could sign up in September, immediately give the 3 months’ notice, and be all good by January!
From what I can tell, this would give APRA three months’ worth of free reign to go after people for money – which is exactly what I do not want. Also, this process can cost about $200AUD.

So now…
1) Sign up for APRA
2) Pay APRA $200 to…
3) Opt out of everything
4) Hope that APRA doesn’t screw with people in the meanwhile***
5) Collect remaining money
6) Send remaining money to TV station

***We have now run into the territory of “really unacceptable” and “potentially asinine”.

Option, The First
Do nothing. Leave the money with people who collected it on my behalf without my permission. This money will go back into the pool of random money and be given to other composers for no apparent reason.

Option, The Second
Try to actually get the money and give it back to the people who didn’t need to pay it in the first place, while possibly screwing up licensing for everyone else.

I seriously dislike this portion of my world.

Great Publicity

“Will you score this incredibly complicated action movie I’m filming for my 6th grade film class? It’ll be great publicity for you because my whole class will see it – and you’ll be in the credits!”

That’s what I deal with all the time. Great publicity and $10 will get me lunch*.

Publicity Guy

If you are a content producer, please do not try to sell “publicity” to anyone. I get the “publicity” sell continuously – and what it generally means is that the product is abysmal.

Professionals understand which projects will increase their profile and which ones will not. No need to mention explicitly.

Now that I’ve annoyed everyone who has ever sold “publicity”, I’m going to go back to my music-hole and work a bit. I’ll probably not get much publicity by doing that, though. hmm…



*Please donate $10 for Kevin’s lunch.