Timid Exclusive's Interview With New York Entertainment Attorney John J. Tormey III, Esq.

Timid Exclusive's Interview With New YorkEntertainment Attorney John J. Tormey III, Esq.

http://timid-exclusive.blogspot.com/2012/03/boridom-man-of-law.html

John J. Tormey III, Esq. is a heavy-hitting entertainment attorney from New York City. His mix of experience and insight on the world of entertainment has brought him great success. He is old-school and has been around long enough to find ways to help artists despite the rise in illegal downloads. I was given the privilege and honor to interview John J. Tormey III. Enjoy the experience, read the interview, and visit John J. Tormey III's website for further information:

http://www.tormey.com

INTERVIEW

1. As a lawyer, how important is protecting intellectual properties?

Well, it may not be important to all lawyers in all parts of the practice and in all jurisdictions. Many other lawyers practice in such narrow areas of specialty, and/or in such unrelated fields, that intellectual property (I.P.) issues seldom, if ever, come up for them. Yet for a music and entertainment lawyer like myself, intellectual property protection is an everyday, life-time concern and a regular challenge.

In theory, every business-owner should have a working knowledge of I.P. After all, one's own business name is a property, usually claimable as a trademark or service mark. So, too, might be a band's name or an artist's name.

Clearly anyone in the field of entertainment needs to have a working knowledge of intellectual property - and, with respect to their own original material, they need to be vigilant in regards to protecting it. The primary areas that need to be mastered in these respects, are the I.P. areas of copyright and trademark. A good starting-point is the U.S. Copyright Office (USCO) website:

http://www.copyright.gov/

 

to the extent an artist may not already be familiar with it. I first learned about copyright by writing to the USCO and requesting their written materials by mail. This was in the days before the Internet happened.

2. What is it like working with TV actors and musicians?

I love doing it, but for me it is business as usual. My father is an actor who started his career as a child actor in the 1940's. I grew up on tour with my Dad and my Mom while one and sometimes both of them were working on summer-stock or other performances.

I played guitar in a rock-and-roll band in high school with a piano-player named John ("Jojo") Hermann:

http://www.widespreadpanic.com/bio

 

who then became Widespread Panic's keyboard player. I played guitar in a rock-and-roll band in college with Tom Morello:

http://www.nightwatchmanmusic.com/

 

who then became the guitar player for Rage Against The Machine, Audioslave, and Street Sweeper Social Club, not to mention his work as The Nightwatchman. I sometimes still play rock music with members of my college band, in what little free time I have these days.

The majority of my friends are in the arts or entertainment in some way. So, it's more than working with actors and musicians. I live with actors and musicians, and in some cases I'm related to them.

3. How does it feel to be the force behind so many forms of media?

I would never say that, because I'm not the talent in the performance or recording. Maybe my clients are, if their work gets heard or seen in any individual case. I think if there is a "force" behind all of it, it's something more akin to divine inspiration - that moment when the creativity runs right through the artist as template or conduit. Artists are original but are also a product of their life-experiences, and what they have already seen and heard. The "force" of artistic creativity is a lot bigger than any one of us.

That said, I think an entertainment lawyer has to have a respect of, and also a distance from, the art form. If you lose your objectivity you can't effectively represent someone. The Hippocratic Oath of doctors is something like, "First Rule, Do No Harm". Something like that is also true for an entertainment lawyer. While the first and foremost rule is to protect the client while following the law, one special corollary for entertainment lawyers should be "Don't Impair The Art Form". In other words, don't ever substitute your own notion of artistic judgment, for that of the artist - at least not when you're working, that is. Know that the art is bigger than you.

In this respect, my clients are the force. They teach me what art really is. Every day.

4. Can you tell us a little about your early life and what led up to being an entertainment lawyer?

 

I grew up in a show business family, as did many other kids I knew in 1960's Manhattan. I grew up in mid-town. I always ran into celebrities, and always recognized them when I saw them - from the newspaper or my old black-and-white television. My mid-town neighbors growing up were Walt "Clyde" Frazier:

http://www.waltclydefrazier.com/

 

Jack Dempsey:

http://www.cmgww.com/sports/dempsey/

 

Rusty Staub:

http://rustystaub.com/

 

Jake LaMotta:

http://officialjakelamotta.com/

 

Ken Boswell:

http://en.wikipedia.org/wiki/Ken_Boswell

 

Jim Fregosi:

http://en.wikipedia.org/wiki/Jim_Fregosi

 

and Dave Marshall:

http://en.wikipedia.org/wiki/Dave_Marshall_(baseball)

I played sports at an early age. I played music at an early age. Performances are what people did, and attended, in Manhattan, and still do. I've worked in other areas of commerce, with other forms of businesses, too, but I always considered entertainment the family business - much like a boy who grew up in his father's auto-shop might be more likely to become a mechanic later on, once grown up.

The main question to me was whether I was going to be a performer, as in a baseball player or rock musician - or alternatively, work in the businesses related to those performances. By the time I made that decision, I had already lived through life on the road, and life between casting calls - not to mention with a thrown-out pitching arm and fear of tinnitus. I didn't want to spend an unspecified amount of further time lifting P.A. stacks into and out of unmarked vans, or let the gigs take any more of a physical toll on me. I was thinking long-term. I was reasonably sure that as an entertainment lawyer I could stay as close as I wanted to, to the art forms that meant something to me. I was right.

5. What other lawyers inspire you?

Any lawyer that selflessly works on causes and gives back to the community. I have worked on environmental causes in the past, and that work is the most draining type of pursuit you can ever imagine. It's all-consuming.

My main inspirations are Phil Hoffman, Esq., who was my mentor when I started in the practice of law at Pryor Cashman in New York in 1987 - as well as my entertainment law professor from UCLA School Of Law, Gary Stiffelman, Esq. What they taught me, I take with me and use, every day of my working life.

6. What advice do you have for aspiring musicians?

Well, I wouldn't want my thoughts in an article misconstrued as legal advice for any specific person in any specific situation. That kind of advice should only be sought and obtained in a one-to-one and private dialogue with counsel.

However, I can summarize the things I might say to aspiring musicians who are friends of mine. The main thing now, is not to give up. Collectively, we have just turned the corner, in terms of the American economy, and in terms of the music industry specifically.

Many nay-sayers for the past few years doubted whether new artists could ever make money and support themselves on music ever again. Sure, in some respects it is more difficult to do, post-digital downloading. But the music industry has already re-invented itself. The center of gravity is now performance and touring revenue, and merchandise. Don't fight the new model. Embrace the new model.

Furthermore, there is so much more that artists can do now to promote sales and make themselves known, including social media. And the trend is towards eliminating the middlemen who used to interject themselves into every income-stream. Embrace the new model. Make it your own.

I used to have music friends who were afraid to use cell phones. Now, those same friends are managing their publishing businesses with secure lap-tops while on tour. The main bit of advice to music friends always is, "Empower yourself, control your own destiny, and make sure that you (or your counsel) generate all your own documents". I tend to see artists as in either of one or two groups - "Victims", and "Empowered". The fundamental distinction between the two groups, is that the "Victims" make themselves beholden to other people's documents, whereas the "Empowered" control the drafting of their own documents. With the availability of desktop-publishing since the 1980's, there is no excuse now for not controlling the drafting of the documents that affect your life or your career. There is no reason to ever blindly sign on to someone else's form. All that does is make more work for the litigators.

7. What is your opinion on the current state of the music industry?

I'm sanguine about it.

The best new feature is the ability of artists to self-distribute, either by sale of CD's on tour at retail, or over the Internet.

The worst new feature also relates to the Internet, though, too - the ability of pirates to poach material digitally, in a matter of milliseconds.

Personally, I am happy that a premium is now placed on artists doing live performances, and more of them. To me, that is what the art form is really about, anyway. There are bands re-grouping after 20 or 25 years of inactivity, and going back out on the road. In a way, it's a shame that current economic realities force them back out on the road when they earlier thought they could comfortably retire on royalties. But the fact of the matter is, it's a good thing that one or two whole new generations of music fans now have an opportunity to see and hear these bands and artists. After all, once these bands and artists are gone, all that may remain are the recordings - and the recordings just aren't the same thing as a live performance, or the meet-and-greet afterwards.

8. What's the hardest part of being involved in the entertainment industry?

Knowing that some talent remains undiscovered... and, these days, seeing a trend towards the replacement of union talent with non-union talent, which is a somewhat-related issue. The just-world-hypothesis tells us that talent and hard work should be rewarded. It often is. But it is not always rewarded. Unfortunately politics and luck sometimes play a part in the reward outcome, too.

That said, the trend towards artist self-distribution might be the panacea. The market, the public, should decide which art they want to pay to hear, see, and experience. The decision should not be force-fed to the public by the same 3 or 5 corporate conglomerates.

So I think generally, the hardest part about being involved in the entertainment industry, is knowing that the continued concentration of economic power therein, in the hands of a few rather than many, prevents a lot of good material from being heard or seen.

My hope is that this changes in my lifetime, and that I get to see it. I am going to continue to fight to make the change happen, too.

evolver.fm Interview With John J. Tormey III, Esq., New York Music Lawyer: Reversions Of Masters, Terminations Of Transfers, And Derivative Works Under The United States Copyright Act

EVOLVER.FM INTERVIEW WITH JOHN J. TORMEY III, ESQ., NEW YORKMUSIC LAWYER: REVERSIONS OF MASTERS, TERMINATIONS OF TRANSFERS, AND DERIVATIVE WORKS UNDER THE UNITED STATES COPYRIGHT ACT
http://evolver.fm/2012/02/29/why-mastered-for-itunes-wont-defuse-a-copyright-time-bomb/
http://www.evolver.fm/

Interview by Eliot Van Buskirk

Why ‘Mastered For iTunes’ Won’t Defuse A Copyright Time-Bomb

Next year, in 2013, a time-bomb embedded in the Copyright Act of 1976 starts to detonate, as valuable copyrights fall back into the hands of artists who decide that they would prefer to own their songs, rather than allowing their label and publisher to keep selling them.

Recordings released in 1978 will be up for copyright termination in 2013, even if artists legally sold those songs away decades ago. Recordings from 1979 fall into this category in 2014, and so on, over the years.

These are valuable copyrights, useful for licensing in movies, advertisements, and videogames in addition to being sold in iTunes and elsewhere.  Wouldn’t it be convenient if the labels could devise a way to hang on to those sound recordings? After all, everyone from the guy behind “Funkytown” (listen above) to The Eagles is lawyering up to take back songs sold to labels and publishers.

Indeed, Mitch Glazer, later hired as a lobbyist for the RIAA, gave the labels some grounds to keep these copyrights by adding a provision to the Copyright Act in 1999 that attempts to categorize sound recordings as “works for hire” made by musicians as employees of the labels. The U.S. Registrar of Copyrights objected strongly to the addition because it changed the law, rather than correcting an oversight. (Update: The provision was repealed [thanks, Eriq Gardner], although sources we’ve spoken with say the “works for hire” issue is still at play today). Our courts — possibly the Supreme Court — will likely have to untangle the whole mess after artists start trying to get their songs back next year, with notices already being filed.

One magical option for the labels would be to create a new sound recording copyright for these songs — say, by remastering them for iTunes. It did seem a bit odd that Apple, after listening to audiophiles complain for nearly nine years about the sound quality of songs sold in iTunes, would unveil its “Mastered for iTunes” program the very year before these old copyrights started reverting. Could the labels’ ace in the hole be a plan to sell newly-copyrighted remasters while allowing the old and busted ones to revert?

After hearing from multiple lawyers and other sources (some who would not comment on the record), we’re convinced that Mastered for iTunes cannot allow record labels to defuse this copyright time bomb — even though movie studios have been granted new copyrights for colorizing black-and-white movies. As it turns out, the difference between the regular version of the song and the “remastered for iTunes” version is too small, from a legal perspective, to justify a new copyright (and with it another 35 years of label control). For a new copyright, a band would have to go farther than that — say, by recording a new version.

[One source] summed things up by phone, putting our mind at ease that “Remastered for iTunes” cannot be a copyright land-grab disguised as an improvement in compressed sound quality. Casey Rae-Hunter, deputy director of the Future of Music Coalition agreed, saying that there’s not enough change in expression between the original and the remaster. (Apple and all four major labels declined to respond.) Then we heard back from New Yorkentertainment lawyer John Tormey III, Esq. (email) with a remarkably in-depth explanation of why Remastered for iTunes won’t stop copyrights from reverting to artists starting next year.

If you’re interested in the intricacies of this situation, buckle up:

[Said John J. Tormey III], "First of all, none of my comments are intended to speak to Apple’s specific situation, or the specific situation of Apple adversaries if any.

Second, the two parts to your question may be apples-to-oranges, to some degree. Though there will always be exceptions, those in your hypothetical question taking action to retrieve “revert[ed]” music-related copyrights under the Termination Of Transfer provisions of the U.S. Copyright Act – See 17 United States Code (U.S.C.) § 203

http://www.law.cornell.edu/uscode/text/17/203

and 17 U.S.C. § 304

http://www.law.cornell.edu/uscode/text/17/304

– would more typically be songwriters or their families seeking a “return home” of rights in the old songs (compositions), rather than in their corresponding masters (sound recordings). Those are two different rights, albeit corresponding to the same album material perhaps. In fact, the United States Copyright Office (USCO) has two different forms for these two different rights – USCO “Form PA” corresponds to songs (compositions):

http://www.copyright.gov/forms/formpa.pdf

whereas USCO “Form SR” corresponds to masters (sound recordings):

http://www.copyright.gov/forms/formsr.pdf

 

Traditionally in pop music record-deal history, songs have been exploited by and through publishing companies and performance rights societies:

http://www.ascap.com/

http://www.bmi.com/

http://www.sesac.com/

as agreed and permitted by the original songwriter (generally speaking and to simplify, “publishing”) – whereas rights to the masters traditionally originated with, and often stayed with, the record labels. So, the songwriter/musician signed to a traditional record deal may have retained his/her “publishing” and even received a per-unit record royalty (or been stiffed out of one, perhaps), but that doesn’t mean that the songwriter/musician ever had ownership in the master (sound recording).

But for the sake of your hypothetical, let’s assume that a songwriter/musician somehow originally held both sets of rights (1. Songs, 2. Masters) in the same initially-self-produced album. And now, there’s a later-occurring transferee or licensee, like an Internet distribution company, trying to stave off the songwriter/musician’s family’s pursuit of revert[ed] (or as I sometimes colloquially say, “recaptured”) rights under the Termination Of Transfer provisions of § 203:

http://www.law.cornell.edu/uscode/text/17/203

or § 304:

http://www.law.cornell.edu/uscode/text/17/304

 

Sure, your hypothetical Internet company can try to claim a “new copyright” in a newly-reworked master:

http://www.copyright.gov/circs/circ14.pdf

and can even try to file a new (or additional) Form SR with the United States Copyright Office (USCO) corresponding to it, but: (A) the USCO, federal courts, and jury might still disregard the Internet company’s claim and filing post facto, and adjudicate to same effect when the claimed “new” right is administratively-tested and/or forensically-tested; (B) the Internet company may be making the “new” claim and filing for “bluff” purposes alone and full well know how flimsy their theory is under their own fact-pattern, never having any intention to go to court or even to the USCO with the “new copyright” theory; and (C) the analysis could be affected by whether the copyright in and to the original, underlying sound recording has already fallen into the public domain (PD):

http://www.copyright.gov/help/faq/faq-definitions.html

at time of the remastering. If a party in the old chain-of-title for the original master failed to timely file a renewal when the statute required, for example, the copyright in the underlying original work could already be PD, and a new claim and filing won’t bring it back from the dead.

“Derivative work” is a term of art under the Copyright Act. Under the Copyright Act, a “derivative work” is defined as a work based upon one or more pre[-]existing works… such as a new musical arrangement – or, yes, a “transformed” “sound recording” – your very case. See 17 U.S.C. § 101:

http://www.law.cornell.edu/uscode/text/17/101

 

Depending upon factual circumstances, one could argue that a remaster based upon an original master, is a derivative work of the original master, yet I think that would pre-suppose audibly-detectible differences between the first and second master such that USCO, judge, and jury wouldn’t otherwise simply hear the two as identically the same. Jurors, particularly, aren’t always musicians.

Let’s assume, though, that your hypothetical new master is significantly audibly-distinct from, and even improved with respect to, the first master. Still, as stated by the Second Circuit, a derivative (work) copyright is a good copyright only with regards to the original embellishments and additions made [to] the underlying work. See, e.g., Harvey Cartoons v. Columbia Pictures, 645 F. Supp. 1564, 1570 (SDNY, 1986):

http://www.leagle.com/xmlResult.aspx?page=4&xmldoc=19862209645FSupp1564_11974.xml&docbase=CSLWAR2-1986-2006&SizeDisp=7

 

Copyright in a derivative… work merely protects against copying or otherwise infringing… the original contribution contained in the derivative work. HarveyCartoons v. ColumbiaPictures, 645 F. Supp. 1564 (SDNY, 1986):

http://www.leagle.com/xmlResult.aspx?page=4&xmldoc=19862209645FSupp1564_11974.xml&docbase=CSLWAR2-1986-2006&SizeDisp=7

See also Rohauer v. Killiam, 551 F.2d 484 (2nd Cir. 1977).

http://federal-circuits.vlex.com/vid/rohauer-killiam-shows-36847796

 

So, yes, the Internet company could try to claim a “new” copyright in the new master. But that claim is limited to the incrementally-added material, at best:

http://www.law.cornell.edu/uscode/text/17/103

 

And that “new” claim shouldn’t extend the old copyright term in the underlying master – else the limitations on the term of copyright under 17 U.S.C. § 302 would be rendered meaningless thereby:

http://www.law.cornell.edu/uscode/text/17/302

 

Imagine record labels re-registering new masters every few years, on into perpetuity perhaps, subverting the purpose and intent of the Copyright Act – which instead only intends to confer a limited but not perpetual lawful monopoly to rights-holders.

Rather, the best that the Internet company in your hypothetical can hope for, when claiming and registering a copyright in the new master, is to seek protection in the new additions made to the old work. That being said, if a USCO Examiner, federal judge, and/or jury can’t actually hear the changes between the old and new work, then the claimant is going to have a difficult if not impossible time as a practical matter alone, using federal law and the judicial process to enforce those “new” claimed rights. Also, if the original underlying sound recording has already fallen into the public domain, the claimant will likely not evoke much judicial sympathy under the hot lights of litigation, to say the least, as the claimant’s new action will look more like a ruse trying to resuscitate dead rights than anything else. In other words, under most scenarios, there won’t likely be much substance to the remasterer’s “new claim”.

As for whether or not the claimant could try to use the new claim or filing for the re-master as a shield against songwriter descendants proceeding under the Copyright Act’s Termination Of Transfer provisions (17 U.S.C. § 203, and 17 U.S.C. § 304):

http://www.law.cornell.edu/uscode/text/17/203

http://www.law.cornell.edu/uscode/text/17/304

 

I doubt that that approach would be effective under most circumstances, except maybe as a bluff perhaps. The statute and legislative intent are clear that the party acting pursuant to the Termination Of Transfer provisions of the Copyright Act, should be entitled to recapture (or as the statute says, “rever[sion]“) of the original rights as the statute provides. Most “recapturing” parties in your hypothetical would likely be pursuing recaptured rights to compositions rather than sound recordings. The majority of such Termination Of Transfer scenarios in music will be songwriter-families recapturing rights to songs and not masters. Their songwriter forebears often never maintained rights in the masters to begin with".

There you have it.