An Entertainment Industry Expert Consultation With Charles F. Matlock, Esq.

      When starting any business, it is prudent to consult with various experts in your field, but this is especially true for the entertainment industry, due to the many intricacies it holds. One of the most important experts an entertainment entrepreneur should consult with is an entertainment attorney. This is crucial in order to obtain expert legal advice that can protect you, and your business, from possible legal problems or disasters. In keeping with this suggestion, I recently contacted Charles Matlock, Esq., an Illinois entertainment attorney, who has been practicing law since 1996. Since AOAP is a new company, and there are other entrepreneurs who have either started, or are planning to start their own entertainment business also, I thought it would be a good idea to ask this attorney some questions about liabilities, resources, and general advice.

      My first question was regarding any general advice on things I should include, or not include, in my company business plan. Attorney Matlock stressed the importance of having a good entertainment lawyer review the plan in order to be informed of your legal boundaries. He stated that this was especially important because of the fact that entertainment companies generally deal with intellectual property (IP), and having an attorney who has a good grasp on law concepts relating to IP is critical because the lawyer can anticipate what could possibly happen. Attorney Matlock also suggested that the people who would have a working relationship with AOAP, such as engineers, songwriters, and sound designers, be included in the business plan. By identifying those individuals with impressive backgrounds and/or credentials who are key personnel for your business, this bolsters the credibility of the business as a whole in the eyes of prospective lenders and investors. Even if you are unable to list the names of these key resources, you should at least be able to specify what makes them unique, special, or an asset to your business. He said that this should help your business to stand out among many other similar companies in your area.

      My next question for Attorney Matlock was about industry liabilities that I would need to watch out for with a new entertainment company. The first thing he stated was that it is really important to have strong non-compete clauses and nondisclosure agreements, for employees or independent personnel working with the company.  Specifically, it would be smart to have legal documents that deal with nondisclosure and IP matters together, because of situations that can arise from those two matters. Matlock explained that there may be individuals who want to exclusively work for your business, and those who do not. Therefore, you might want to have an agreement that includes a “First Right of Refusal” concept, where you have the right to enter into a business transaction with the other party before anyone else can. He stated that this contractual right, or something similar, would protect you in situations where someone chooses not to exclusively work with your company.   

      Additional liabilities Attorney Matlock warned to watch out for, are liabilities incurred through people who enter or work in your place of business, due to wild/inappropriate behavior or unexpected accidents. Some people in the entertainment industry tend to have very colorful or interesting personalities, which could lead to incidents causing damage to the premises, or to the people there at the time. To protect yourself from this type of liability, he said it is critical to have good insurance for your business right from the start. The last liability Matlock mentioned, dealt with avoiding the possibility of going to court through the use of arbitration clauses in contracts.

      My third question was about suggested industry resources to use for my business. Attorney Matlock stated that it would be a good idea to establish relationships with unions such as SAG and AFTRA, and with entities that hold entertainment workshops and conferences that are in keeping with your intended purposes. He also suggested another organization called JAMS, which would be a good resource because they deal with dispute resolution.

      My final question to Attorney Matlock was whether or not he had any general advice for me as a new entertainment entrepreneur. He was adamant about the fact that I definitely needed to have more money than I would think that I needed, because things in entertainment are quite expensive. He pointed out the need to have money to pay for things such as equipment, location space, licensing, equipment infrastructure, sampling clearances/permissions, attorney fees, and other necessities. He stated that sometimes you can get items second hand or receive discounts, but not always, so you need to be prepared ahead of time to pay full price just in case. Attorney Matlock also suggested that you make the effort to surround yourself with people who have the utmost integrity, and to also try to pick seriously talented personnel and team members with great people skills. He also stated that as a business owner, it is important to know the extent of each person’s talent, and to only expect from them what you know they are able to offer.

      The advice given to me by Attorney Matlock was in response to specific questions I asked for my own entertainment business. However, his recommendations are excellent nuggets of wisdom from a seasoned expert that can serve as sound advice for any entertainment entrepreneur just starting out. Most importantly, take the necessary steps beforehand to protect your business from liability, by seeking legal counsel, and utilizing the appropriate entertainment resources available to you. 

Legal Pitfalls: Something Audio Production Companies Should Try to Avoid

      Companies that provide audio for media are in a separate category, because of the nature of what they do and how they do it. However, this does not exempt us from the fallout that result from lawsuits or legal controversies that might originate with the creators of such media. There exist various situations in the entertainment industry that can morph into legal disputes over things such as copyright or trademark infringement, and these disputes can possibly halt the work of an audio production company altogether. As such, it is important to examine a few recent entertainment legal controversies, in order to learn from the mistakes made by others, in order to avoid similar problems for your own business. I have found three different cases that are related to some of the areas Art of Audio Productions will provide services for, and hopefully, my description combined with commentary on each case will prove to be beneficial for my readers.

     The first case I found was about the 2013 lawsuit brought against Marvin Gaye’s family and Bridgeport Music. The composers of the song “Blurred Lines” (sung by Robin Thicke) commenced the suit in retaliation to the threat by the two parties to initiate litigation for copyright infringement, according to an online article by Forbes. The conflict occurred because the two entities that threatened litigation, both maintain that “Blurred Lines” is strikingly similar to, influenced, and/or inspired by both “Got to Give it Up” (by Marvin Gaye/owned by his family) and “Sexy Ways” (by Funkadelic/owned by Bridgeport Music). The composers standing accused, Pharrell Williams, Robin Thicke, and the rapper T.I., responded as a measure for protecting themselves through “declaratory relief”, where the matter will be decided through a judgment in court. The article written by Oliver Herzfeld is very thorough because it not only describes the controversy in detail, but it also explains the two different aspects of copyright infringement, and how it applies to this particular case.

      

      In my opinion, this is a very difficult case because I can definitely see how Bridgeport Music and the Gaye family could come to these conclusions, since the Thicke song is quite similar to those two songs in some ways. However, throughout the years many songs have sounded reminiscent of other previous songs, even without the intent of doing so because of how the human mind works. In contrast, there are also numerous cases of intentional theft of ideas and works in the music industry as well. The trick is in proving such with cases like this one, where it is not so blatantly obvious. The lesson to be learned from this case, for all songwriters, is to ask yourself if you are being even remotely inspired or influenced by someone else’s song. If so, you need to legally obtain the proper permission and clearance from the owner before releasing your version.

      Another controversy took place in 2013, over the alleged trademark infringement claim made by Wizards of the Coast, a gaming company subsidiary of Hasbro, against Sunstone Games. According to an article on GamePolitics.com, Simon Strange (Sunstone Games owner) was first sent an email in December 2012, which notified him that they believed his game, “Kaiju Combat”, was a trademark infringement upon Wizard of the Coast’s "Kaijudo". Strange did not hear anything more until March, when Kickstarter removed his Kickstarter campaign, at the request of Wizards of the Coast, for the same reasons stated in the December email. An email was also sent out to Strange’s campaign backers, which not only put backers in a bit of an uproar, but it also put a stop to all development of the game for a while. This setback was not permanent though, since the game is still in the process of being developed according to Sunstone Games. The article provides Strange’s response to the situation, where he stated that he could understand how important it is to defend one’s trademark. However, he also expressed that usage of the word Kaiju (which is a common name) in a game title should not be blocked for any game developer. Furthermore, that a suit such as this could tie up money that would otherwise be used for game development, because his company is small and relies heavily upon backers and sponsors for money to complete games, so there is not very much to use for lawyers and court costs.

      In my opinion, there was not much credence to this claim because Kaiju is a popular Japanese name that refers to strange or mythological creatures, such as its reference in the movie Pacific Rim or to the infamous creature named Godzilla. Logically then, how could such a name be trademarked by Wizards of the Coast just because it is a part of one of their brands? Apparently, this case did not have much to stand on for that reason, because the Sunstone game has continued development. The lesson to be learned here is that independent, small businesses need to be prepared for interruptions of work because of possible legal issues. If the media company is stalled because of a lawsuit, then the company providing the audio for that media will be stalled as well. It is an unfortunate domino effect that one needs to anticipate in business, and have a contingency plan or an alternate project to work on in place of the one that was halted.

      The final legal case I found in a BillboardBiz article was about an engineer who sued Tommy Lee (Motley Crue drummer) in December 2013, over a roller coaster drum-kit idea he claimed that Tommy stole from him. Howard Scott King was apparently an engineer working at a company and with the band agents in 1991, where he came up with the idea for Tommy Lee to continually play his drums while riding around a looped track that would even position him playing upside down at one point. He claimed that he submitted this idea to Lee back then, in the form of a proposal, but had never received any response to it. In 2011, he saw Lee perform this “drum ring” on tour, which prompted him to bring the lawsuit. However, he lost the suit because he failed to prove that he had come up with the idea on his own. He also lost because he did not take the proper steps beforehand to protect the idea before submitting the proposal, such as obtaining a non-disclosure agreement (NDA) or a promise not to use his idea without paying him first.

      I completely agree with the judge’s ruling, because King failed to legally protect himself adequately before handing over his unique idea, which was obviously not a very well thought out action on his part. The lesson for audio professionals in this case is very clear: an NDA is a very important tool to use in the sound design industry as well. Furthermore, failure to get one ahead of time could prove to be very detrimental for both your company and those you are providing services for.

      Each of these cases is unique, but they have one central basic lesson, which is to be prepared and properly covered legally at all times when it comes to intellectual property. This applies to all aspects of the audio industry, from songwriting, audio for video games, animation, film, etc. Taking steps to protect your business in advance is very critical for averting legal disaster later.