Trans-Pacific Partnership and America's Right to Know

This is not legal advice. Leave audio feedback at (512) 686-6329.

Ah, SOPA. It's back. At least for this post. If you want to hear my thoughts on SOPA when it was fresh, you can listen at Cyberunions.org. Unfortunately, the Trans-Pacific Partnership is still going strong and it has the possibility to be the new SOPA. We don't know if it will be the new SOPA, but we don't know that it won't.

Below is a full paper I turned in on the TPP.

Breif Thoughts on Tax Consequences for Musicians

This is not legal advice. Leave audio feedback at (512) 686-6329.

Last week in Brian's and my tax class (we don't have all of our classes together, but we happen to have tax together), it was suggested that musicians get a break on tax day. Considering both of my parents are full-time musicians, this struck me as odd. I'd never heard anything about the tax advantages of being a musician. NPR, or at least Patrick Jarenwattananon (what a last name!), seems to be on my side of the the debate on this one. I don't know if this is going to begin another point-counterpoint series for Brian and I. Since finals start next week, I certainly suspect Brian will be taking a break from content for the next two weeks.

I think any sort of tax break musicians might get has to do with the type of musician one is. Taxes changing the development of music has historical precedent. For example, individuals that can support themselves full-time through touring and gigging and do not teach are likely to get the benefits of being a sole proprietorship. If your band, ensemble, orchestra, etc. is incorporated, and you are an employee of that organization, then you aren't going to get the business benefits (though incorporation does have benefits, so don't discount it just due to taxes).

The other thing is that people that own copyrights can get some tax breaks. However, studio musicians generally do not own copyright in their performances.

So, what does this all have to do with Creative Commons?
Potentially, a lot. The tax breaks that musicians theoretically get primarily have to do with being able to prove that music is your business and not your hobby. Unless you are Amanda Palmer or NIN (both of which have released under CC), this is likely going to be tough. If people are interested, I can do another post specifically on hobby losses, but for now, while it pains me to say this, you might be better off (from a tax perspective) releasing under CC, but behind a pay-wall such as you can set up with Bandcamp or Magnatune (and possibly others, we aren't sponsored).


Since the tax code is so mammoth, I'd like to tell people some of the things Brian and I have covered in our tax class to give you some ideas on things we might be able to discuss in the future:

1. Gross Income
2. Gains and Losses from Dealings in Property
3. Gifts and Inheritances
4. Discharge of Indebtedness
5. Fringe Benefits
6. Business and Investment Expense Deductions
7. Capital Expenditures
8. Depreciation and Amortization
9. Deductible Personal Expenses: Casualty and Theft Losses
10. Other Deductible Personal Expenses: Taxes, Interest, Charitable Gifts, Moving Expenses, and Medical Expenses
11. The Deduction Hierarchy: Adjusted Gross Income, Taxable Income, the Standard Deduction, and the Personal Exemptions
12. Timing Rules and Related Principles
13. Ordinary Tax Rates and Taxplayer Classification
14. Tax Credits
15. Capital Gains and Losses
16. Quasi-Capital Assets
17. Recapture of Depreciation
18. Residential Real Estate
19. Like Kind Exchanges
20. Involuntary Conversions
21. Alimony and Support
22. Personal Injury Recoveries and Punitive Damages

We didn't actually directly cover in dept the The Charitable Contribution Deduction or Hobby Losses, but I think both of those are important for musicians to know about and I'd be prepared to do a post if people are interested.

If you are a musician in the US and need tax advice, I encourage you to speak with your local VLA chapter. I'd also be interested in hearing feedback from people in other jurisdictions about the tax consequences of being a musician. I'm hoping, specifically, that friend of the blog Marc, will chime in on whether he knows anything about the tax consequences of gigging in The Netherlands.

Get in Touch

Music Manumit Last.fm group
My Last.fm username: DouglasAWh.
Libre.fm username: douglasawh. 
280.status.net: douglasawh
I'm on too many social networks to list them all!

Donate

Flattr 
Help Doug get through law school! Buy him a book or food!

The Ins and Outs of Copyright Registration

This is not legal advice. Leave audio feedback at (512) 686-6329.

Expected Audience: Anyone who wants to know the basics of Copyright Registration



Copyright registration is a fairly straight forward and simple process. There are three basic requirements an application, a filing fee, and a deposit. The application is a simple set of forms that can and should be filled out online. (Filling out paper forms requires a higher filing fee, so why would you bother with paper?)

The deposit is a copy of the work to be sent to the copyright office. If the work that is being registered has already been published two copies need to be sent. (One is for the Library of Congress, but the Library of Congress doesn't necessarily keep every copy it is sent.) The copyright office destroys the deposits that are sent in. One interesting rule is that the deposit is supposed to be the best edition of the applicant work. For example an author that publishes a novel in paper and hardback, should send the copyright office a hardback copy of the work. Also, the deposit is not supposed to be electronic, unless the work is published exclusives in an electronic form. A musician that distributes music via MP3 but does not make a CD the musician can send an MP3 version of the musician's work. In class there was some debate about whether a musician who published in both vinyl and CD could meet the best edition requirement with either version or a particular one. The best edition rule is not very well enforced so it was a purely academic argument.

The filing fee is fairly straightforward. It can be paid online via credit card. The copyright office doesn't host the payment services and uses a third party site.

Roadmap for Future Trademarks Coverage (instead of Current Issues Week 3)

This is not legal advice. Leave audio feedback at (512) 686-6329.

Long ago (not actually that long ago in the scheme of things), I skipped Week 3 in the "Current Issues" series before deciding to take that series monthly. Over the summer, I plan to finish up brief summaries of what we covered in the course. There is a lack of doctrinal Trademark podcasts on the web, so I hope at some point to fill that gap. Sure, they speak about trademarks on This Week in Law occasionally, but there's no Life of a Law Student-style podcast on trademarks, and I think there should be. It certainly would have been helpful for me.

Anyway, in week three of International IP we discussed the "Blue Revolution." It is quite fascinating (of course, I say this having a Biology degree and Chemistry minor) but not really appropriate for the Lawcast. Thus, I am going to talk about Trademarks!

What a Herculean task with which I have presented myself (and that's why I skipped it during the actual Week 3). Just to give you some idea of the task, our course book has 1002 pages plus the index and has a 549 update supplement. Upon a couple months of reflection, this is not something that can be done in one post, which is why I am leaving a roadmap for you today. Please let me know if there are specific topics I list that you would prefer I get to sooner rather than later. 
 
I first want to discuss a few of the details of posts that have already happened here and those that are in the works.  Brian already did a post on trademarks as they relate to band name. I think Brian is going to be bringing you some thoughts about registration this semester (although, considering where we are in the semester, I don't know if that is happening). Additionally, I'm going to come back to geographic indicators in a separate "Current Issues" post.

Between Brian and I, we've basically knocked out a chapter of the book Professor Susan Richey has assigned for us. The chapters, as a guide, are:

1. Concepts of Trademarks and Unfair Competition
2. What is a Trademark?
3. Ownership and Use
4. Registration of Trademarks
5. Loss of Trademark Rights
6. Infringement
7. False Designation of Origin
8. Advertising
9. Dilution
10. Authors' and Performers' Rights
11. Internet Domain Names
12. Trademarks as Speech
13. Remedies

During week 4 of the current issues series, I wrote an article about domain names, so we can skip that too. The First Amendment is a course I may be taking next semester, so let's skip chapter 12 too. That leaves us, essentially, with:

1. Concepts of Trademarks and Unfair Competition
2. What is a Trademark?
3. Ownership and Use
4. Loss of Trademark Rights
5. Infringement
6. False Designation of Origin
7. Advertising
8. Dilution
9. Remedies

Those will be the 9 topics in the trademarks series. Expect it to look a lot like the copyright series did last semester, only in audio. It may or may not have Brian's involvement. If you can't wait for me to get done with the audio editing, below I've left you places you can find further information on trademarks. Again, please let me know what you think of the roadmap. We'll try to stay flexible!

Additional Resources

Wikipedia Article on Trademarks
USPTO guide for Musicians and Artists

USPTO FAQ about Trademarks
Canadian Copyright and Trademarks
Intellectual Property Office: European & International Trade mark's
CC Licenses and Trademarks: A Guide for Organizational OER Creators and Distributors
Podcasting Legal Guide: Trademark Issues
CC0 and Trademarks (and patents)
What's in a Name: Can Trademarks be Helpful to Free Software Projects?
Karen and Bradly discuss "Some of What You Need to Know About Trademarks"
Other Trademark-related podcasts
ARC Law Group: Trademark Basics

Get in Touch

Music Manumit Last.fm group
My Last.fm username: DouglasAWh.
Libre.fm username: douglasawh.
280.status.net: douglasawh
I'm on too many social networks to list them all!

Donate

Flattr
Help Doug get through law school! Buy him a book or food!

Public Draft: Trans-Pacific Partnership and Murica's Right to Know

This is not legal advice. Leave audio feedback at (512) 686-6329.

UPDATE: You can hear me reading a slightly updated draft of the paper over on my SoundCloud page.

I'm going to do something I haven't done before. I'm going to post a draft of a paper I am working on. I've posted on status.net links to the Google Docs version of the paper, but I've never posted here. Part of the reason is because we need content!

I missed the March posting of my first paper because I haven't had time to go back and format. You'll see here what I mean. There are no footnotes. For the footnotes you'll need to click on the GDocs version.

I would love feedback. You'll get credited for your help if you give feedback, just like a couple people did at the end of the last paper. The paper is due May 3rd, 2013. If you find this after that date, look for the final version on the site...the Google Doc should be current either way though.

"Current Issues" Series Going Monthly

This is not legal advice. Leave audio feedback at (512) 686-6329.

I have already made this decision over at OpenSourcePlayground.org, but for the next two months my posts here will be monthly. Between running Netizen Empowerment Federation, midterms and applying for summer fellowships, there is just too much going on right now.

I still think Brian is planning on bringing some posts this semester. We shall see.

In the mean time, Tom and I will still be releasing weekly and in March we are doing some experimental shows, so be sure to give us lots of feedback on whether you like the new format!

Get in Touch

Music Manumit Last.fm group
My Last.fm username: DouglasAWh.
Libre.fm username: douglasawh.
280.status.net: douglasawh
I'm on too many social networks to list them all!

Donate

Flattr
Help Doug get through law school! Buy him a book or food!

Top 10 Things You Should Do/Know When Negotiating a License (Part 2 of 2 instead of Week 6 of Current Issues)

This is not legal advice. Leave audio feedback at (512) 686-6329.

As Tom and I have mentioned several times on the main show, if you release your music under Creative Commons, you can always license your work to someone else under a non-CC license. For example, if you release under BY-SA, you can contract with a film producer for them to use your music without the film producer having the release under BY-SA (which they would have to normally do under the ShareAlike provision, aka SA).

1. If at all possible, get a lawyer.

While not technically a member of the attorney guild just yet, you're right to be skeptical of my intentions here. It is, however, the most important of these suggestions. There are a lot of reasons why getting an attorney is important, but I'll give you two of the most important.

First, if the lawyer screws up, you an sue them for malpractice. If you screw up the contract yourself, sue yourself. Let me know how that goes.

Second, the laws are different in different jurisdictions. Copyright might be federal in the US, but occasionally there are circuit splits. You may very well know the New York contract and copyright interpretations, but if the film maker is in California, it's possible California law might apply.

2. Define everything.

Certain words have specific meanings in copyright and contract law, but if you're negotiating on behalf of yourself, you probably don't know those meanings. If you force the other side to get all of the meanings in the contract, at least you aren't being left in the dark about the meaning.

3. Assume you will be going to court later.

While writing things down can have some positives aside from just having something to hand a judge, if you have no intention of ever suing anyone, there's not much reason to spend time negotiating a contract. Just license your work under the WTFPL or CC0 and save everybody the hassle.

4. Don't act like you know what you are doing.

This mostly applies if the other side as a lawyer. Courts generally do not look kindly upon lawyers taking advantage of lay people. It's true that this presupposes that you're going to be in court later, but see #3. If a lawyer knows you don't know contract law, they will have to explain things to you. This is very important. If you do not understand the contract, there is no contract. A contract is a meeting of the minds and if you don't understand, there is no meeting of the minds. It's true that you would have to prove in court that you didn't understand, but if you didn't, this probably won't be hard. If you acted like you knew what you were doing, there is going to be a ton of evidence against you.

5. Assume the worst.

In most cases, the lawyer on the other side is going to be happy you are doing this. Lawyers are by nature pessimistic creatures. Licenses are all about damage control. If you assume the worst, you'll hammer out all the details while negotiating and you'll avoid court later on. But see #3.

6. Understand that most oral contracts are enforceable.

There are plenty of exceptions, like real estate contracts, but most oral contracts are enforceable. If you agree to something on the phone, don't expect to weasel out of it. That said, proving there was an oral contract is often hard.

7. Write it down.

This might be obvious, but you don't want to get in a he-said, she-said battle in court.

8. Make sure the other party knows you license under CC.

For one thing, if you've licensed under CC, you won't be able to give an exclusive license. Now, you might be able to do some things exclusive. For example, you could contract away the right to further sub-license. Again using the example of the film maker where you've released under BY-SA. You could specify that you would not license another film maker for proprietary use. What you could not do is say that your song will never appear in another film, because BY-SA films would still be allowed.

9. Don't forget about trademarks and trade secrets.

If a film maker is licensing your music, it's unlikely that you'll be potentially revealing any trade secrets. If the film is a documentary though, particularly one where certain individuals are portrayed in a negative light, they may not want you telling anybody about that. While this is really their issue and not your issue, just because the other person doesn't have a case doesn't mean you won't get a threatening letter. Additionally, if you violate their community norms, they may lambaste you which could tarnish your career if it's a popular film maker. If you are coming from a community, like CC, that values sharing, you might not think of this. Just be aware that if you are dealing with a non-CC film maker, they may not feel the same about sharing as you.

10. Ask for help.

Help is available from organizations like Volunteer Lawyers for the Arts. They don't appear to have affiliates in all 50 states, but many states and a few countries have affiliates. If you are in a state that doesn't have a VLA, ask me and I'll see if I can help you find someone.

It's true I probably could have folded this into #1. However, you are always supposed to start and end strong, and I really cannot emphasize how complicated the law is. This is why you should choose CC if you haven't already!

Remember, contract law is different in different parts of the USA and of course in different parts of the world, so see #1!

Get in Touch

Music Manumit Last.fm group
My Last.fm username: DouglasAWh.
Libre.fm username: douglasawh.
280.status.net: douglasawh
I'm on too many social networks to list them all!

Donate

Flattr
Help Doug get through law school! Buy him a book or food!