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Two Events Roll The Rock Industry!

2012-05-11T01:40:15Z

TWO EVENTS ROLL

THE ROCK INDUSTRY!!

AUTHOR OF "Y.M.C.A."
GET RIGHTS BACK!!

In recent updates, I have commented on the "Termination Rights" found in Section 203 of the Copyright Code. I had mentioned that if the "Termination Rights" provision was upheld, it could spell the doom of what we consider the classic record company. Well, that day has arrived.

“Y.M.C.A.”, the gay-anthem of the 1970’s, is the first song to have its author regain the rights pursuant to the “Termination Rights” of the Copyright Code.

Pursuant to the Section 203 of the Copyright Code, after a period of 35 years, an author who has granted rights to a third-party in a composition, can give notice to the third-party and regain the rights.

George Willis, the author of “Y.M.C.A.”, gave the required notice and the publishers brought suit to negate the termination provision. The Court dismissed the case brought by the publishers, in effect giving a victory to Mr. Willis.

However, the publishers have indicated they will appeal. Of more interest is the argument about what rights have actually been returned. I will continue to give updates on developments as they happen.

SETTLEMENT ON DIGITAL ROYALTIES!!

The other major development regards the determination of what royalty an artist gets from a “download” of a composition. Most recording agreements will pay a royalty of 12% to the recording artist for every “sale” of the sound recording. Most recording agreements give a royalty of 50% when the sound recording or composition is “licensed”. The dispute centers over whether a download is a “license” (50%) royalty, or a “sale” (12% royalty). As you can obviously see, there is quite a difference between the two royalty rates.

Previously, Eminem won a suit where the court ruled downloads were “licenses”. Another group of artists brought suit against Sony BMG. Sony BMG settled with the artists for $8 million dollars.

Three things are immediately apparent: (i) other artists are going to sue to get their share of the pie; (ii) with the precedent of Eminem, the record companies are going to be reluctant to litigate; and (iii) no matter whether litigated or settled, the record companies are facing another huge financial hit.

I would not be surprised to see a variety of record companies file for bankruptcy protection in the next year or two.

KEVIN KLINE BENEFIT PERFORMANCE AT SSC!

2012-04-17T03:38:03Z

Kevin Kline, Jared Sakren (Artistic Director for Southwest Shakespeare Company (SSC)), and myself at Mr. Kline's special benefit performance for SSC at the Mesa Arts Center on April 14, 2012.

The evening was one of the most memorable experiences I have ever had in the theatre! Mr. Kline answered questions for a good hour after his performance and was thoroughly charming and funny. He recounted stories from his film and stage career including snippets on Meryl Streep, Will Smith, Kenneth Branagh and others.

Just a wonderful, wonderful night at the theatre!

Thomas and Aubuchon Disbarred!!

2012-04-11T17:06:11Z

Thomas and Aubuchon Disbarred!!

Just read in the paper that Andrew Thomas and Lisa Aubuchon were disbarred by the State Bar of Arizona! This is a tremendous victory for the legal profession. The actions of Thomas and Aubuchon in bringing baseless charges against goverment officials was one of the most egregious abuses of prosecutorial power that I have ever witnessed. If they had not been disbarred, the ethics rules would have been a laughingstock. Good job State Bar of Arizona!!

And the noose continues to tighten on Arpaio.

KEVIN KLINE AT SOUTHWEST SHAKESPEARE CO.

2012-04-04T04:08:49Z

KEVIN KLINE

SPECIAL APPEARANCE

SOUTHWEST SHAKESPEARE

COMPANY!!

KEVIN KLINE, the Academy Award, Tony Award, and SAG Award winning actor, will be performing with the Southwest Shakespeare Company on April 17, 2012 at 7:30 p.m. at the Mesa Arts Center!

This is a very special and unique opportunity to meet one of the truly accomplished actors of our time!

BROADWAY BOUND - NOT SO FAST

2012-04-04T04:03:36Z

Broadway Bound - Not Necessarily

Over the last few weeks, I have read a variety of articles regarding the state of theatre on Broadway. One of the major stories continues to be the ongoing saga of "Spider-Man". A variety of sources have commented on the weekly box office grosses of this mega-musical. The general box office grosses are in the range of $1.2 million per week.1

However, the "running costs" (what it costs to run the show for a week) are approximately $1 million dollars. In other words, this musical is doing top box office but is barely making money! It will take decades for the musical to reach "recoupment".

Another interesting article commented on how producers will fight to keep a show on Broadway - even if the show is barely making money, or losing money. 2 Why? Because the longer the production runs on Broadway, the greater its cachet on the road. And tours of a major Broadway musical can generate significant revenue for the producer and the investors.

The de-emphasis of Broadway is indicative of a broader trend across the entire entertainment universe. A record deal with a major label is no longer the sole dream of a musician. In motion pictures, a film can make significant money in the marketplace without a major studio supporting it. So too theatre - cities like Las Vegas and Branson, Missouri support first-class "sit-down" productions and can generate Broadway-like grosses. Broadway will never lose its preminence and prominence for theatre, but it is not the "Holy Grail" anymore.

1. http://www2.broadwayworld.com/grossesshow.cfm?show=SPIDER-MAN%20TURN%20OFF%20THE%20DARK&sortby=gross&orderby=desc&year=2012

2. "Broadway Musicals Hang On For Payoffs Beyond Weekly Gross", Healy, Glen, New York Times, March 20, 2012, Pg. 1, Arts.

PERFECT STORM FOR RECORD INDUSTRY

2011-10-15T22:25:32Z

"Perfect Storm" for Recording Industry

As if the assault of technology on the recording industry wasn't enough, there is now a "perfect storm" brewing that could very well be the death knell for what we now think of as a "record company".

Larry Rohter of The New Tork Times has published a series of reports on developments within the recording industry. Initially he reported on the controversy over the royalty rate to apply to downloads of songs1 - if it is considered a "sale", the royalty is 12%; if it is considered a "license", the royalty jumps to 50%. Litigation is already underway to force a ruling. A determination that a download is considered a "license" would force the record companies to pay millions of dollars to their artists. If a court should rule that it is a license, I would not be surprised to see the major record companies file for reorganization (bankruptcy).

On top of that, now comes the possibility that ALL copyright holders, INCLUDING musicians, will be able to reclaim their copyrights in their original creations. Under Section 203 of the Copyright Act, an author can terminate the grant of his copyright to a third-party once thirty-five (35) years have passed from the date of the transfer. Section 203 went into effect on Jan. 1, 1978. Consequently, the first year that copyrights will be able to be terminated is Jan. 1, 2013. The author must give notice of his intent to terminate the copyright grant two (2) years prior to the first date that the copyright can be terminated. Thus, the wave of notices being served on record companies.

For the recording industry, it means that recording artists can reclaim the ownership of the original masters of their albums. Larry Rohter, in his article reporting on the possible effect on record companies2, gives some examples of artists that can reclaim their works: (i) CARS - The Cars; (ii) DARKNESS ON THE EDGE OF TOWN - Bruce Springsteen; (iii) THE WALL - Pink Floyd; (iv) OFF THE WALL and THRILLER - Michael Jackson; and (v) PURPLE RAIN - Prince. Doesn't take a genius to see the value in those recordings!

Litigation has begun - Victor Wilis of the Village People has brought suit to terminate the copyright grant on, among things, "YMCA".3. The record company is arguing that the recordings are "works made for hire", which are specifically exempted from Section 203. "Work for hire" means that the author did the creative work at the direction and pay of another. The record companies will have to show that, among other things, the musicians worked hours that were set by the record company, paid paychecks, took out taxes, and in general, were employees. Anyone who has dealt with musicians knows that none of the above applies.

Legislative action is also being considered. Mr. Rohter reports on efforts by Rep. John Conyers of Michigan, to reform the law to remove the ambiguity regarding the "work for hire" exception.4. The litigation and possible legislation will have many ramifications, within and without the entertainment industry. I will certainly give updates on this situation.

1. "Suit Hints at a Bigger Payday for Older Artists", Sisario, Ben, NY Times, 3/28/2011, Pg. B-1).

2. "Record Industry Braces for Artists' Battles Over Song Rights", Rohter, Larry, NY Times, 8/16/2011, Pg. C-1).;

3. "A Village Person Tests the Copyright Law", Rohter, Larry, NY Times, 8/17/2011, Pg. C-1).

4. "Legislator Calls Fro Clarifying Copyright Law", Rohter, Larry, NY Times, 8/29/2011, Pg. C-1).

snebgen@azentertainmentlaw.com

www.azentertainmentlaw.com

JOBS, JOBS, JOBS

2011-08-06T02:50:45Z

Jobs, Jobs, Jobs!

All graduates entering the job market are facing daunting challenges - and the entertainment industry is no different.

A recent New York Times article1 commented how traditional entry level positions in the film industry have become scarcer - at time when film schools are being inundated with applications. For example, the film school at USC has received 4,800 applications for the 300 slots available. And that was on top of the 2,800 applicants for the year before.

The article made a couple of key points: (i) be aware of cost, e.g., USC costs $1,360.00 per credit; and (ii) be prepared - know the "business" as much as the "show".

And young, aspiring filmmakers in Arizona actually have a job-helping jewel right in their backyard - "The Film School @ Scottsdale Community College" (the "Film School")! People do not realize that the Film School is consistently ranked among the top 15 films schools in the country! And, the cost for in-state residents is $75.00 a credit!

Where Arizona so often lags behind the country in seeing the benefits of a vibrant entertainment industry, the Film School is truly cutting edge.

1. "For Film Graduates, An Altered Job Picture", Michael Cieply, NY Times, July 5, 2011, B-1.

DOWNLOADS - "Sale" or "License"

2011-07-12T20:25:00Z

DIGITAL DOWNLOADS - A "LICENSE" OR A "SALE".

This seemingly innocous distinction has the potential to cost the record companies literally millions of dollars. The issue concerns the computation and payment of royalties for music downloads. See "Suit Hints at a Bigger Payday for Older Artists", Sisario, Ben, NY Times, 3/28/2011, Pg. B-1).

The article uses Eminem as an example. Under his recording agreement, If a "download" is considered a "license" the royalty to Eminem is 50%; if it is a "sale", the royalty is only 12%.

Obviously, the difference between the two rates can result in millions of dollars being owed to Eminem and other artists.

This will be a case to monitor and I will give you updates as I receive them.

ARTLINK - RIP

2011-06-28T20:24:00Z

ARTLINK - the dysfunction continues. In the last year, I have posted comments about the deep dysfunction of ARTLINk under the direction of Sloane Burwell and Kim Younger. Despite the overwhelming dissatisfaction of the art community with the current administration, ARTLINK made some "window-dressing" changes that altered nothing.

The real kicker is that ARTLINK wasn't even around to accept money from the City of Phoenix!

ARTLINk will now fade into obsolescence and obscurity, as the various artistic communities take control of their own promotion and marketing.

It is a real shame, but so typical of Phoenix and Arizona, that a once vibrant organization is taken over by people whose only agenda is self-aggrandizement and self-promotion. RIP ARTLINK - we are sorry to see you go!

FILM TAX CREDIT PROGRAMS

2011-06-21T02:38:18Z

I have received an overview of the Film Tax Credit programs available in each state.

Although the Tax Credit programs are under fire across the country, some states are fighting to continue them. For example, Michigan, a leader and one of the most active in promoting their program, has a bill before its legislature to continue the program. Despite the "knee-jerk" reaction of "why give money to Hollywood", Michigan and other states are realizing the economic benefits that have flowed into their respective states as a result of their programs.

Recently, former Gov. Bill Richardson of New Mexico, wrote an op-ed piece for the New York Times ("There's No Business Like Show Business") discussing the benefits that New Mexico received as a result of their program.

Unfortunately, the Arizona legislature is too busy demonizing the Latin-American community, reducing workers rights, and returning women to the kitchen and undercutting their health, to pay attention to "silly" things such as jobs, tax revenues, and economic growth.

Please call the Firm for a copy at (480) 463-3055.

JUDY: THE MUSICAL IS A SUCCESS!

2011-05-17T04:26:00Z

Paige O'Hara becomes "Judy"!

We completed our one-week, limited run at the Tempe Center for the Arts and the Show was a huge success! We had over 1,000 people see the production; our comment cards are in the 90% approval range; and, dear to my producer heart, we had very strong box office revenue!

Here are a few photos from the Show!

There is serious interest from a variety of investors and co-producers, including possibilities in New York, Las Vegas, San Francisco, and Toronto.

We are currently editing a DVD of the Show and will have that available in the near future.

We will keep everyone posted!

JUDY: THE MUSICAL - Opens in One Week!

2011-04-11T04:07:00Z

I am very proud to be producing this show!

It has been one of the most rewarding experiences in my theatrical career.

Disney star in presentation of 'Judy Garland' musical

Actress Paige O'Hara, who was the voice of "Belle" in Disney's "Beauty and the Beast" film, will play Judy Garland in “Judy: The Musical – Gumm to Garland” (Judy). Judy will be presented at the Tempe Center for the Arts (TCA), FOR ONE WEEK ONLY, beginning Tuesday, April 19 through Sunday, April 24.

Over forty years after her death, Judy Garland’s remarkable talent continues to attract and enthrall generations of fans. With another career-defining performance, O’Hara reveals the complexity of both the exuberance and the tragedy of Ms. Garland’s life, from her stage debut at age 2½ to her untimely death in 1969. The musical features a wonderful original score blended with certain classics that defined Garland. The production is a powerful and moving look at one of the 20th Century’s greatest entertainers.

“I have loved Judy Garland since the time I was a little kid,” O'Hara says. “She was definitely my role model when I was growing up learning to sing.”

O'Hara will take time off from "Menopause: The Musical" in Las Vegas, where she has played the "Soap Star" at the Luxor for more than seven years. She has also performed on Broadway in "Evita”, “Show Boat”, “Mystery of Edwin Drood”, and “Les Miserables”.

Stephen Wade Nebgen is producing with Richard Sullivan writing the book, lyrics and music, Anne Dean Schindler directing, and Michael Markowski doing the arrangement and orchestrations.

The show will run in the TCA Studio Theater, April 19 through April 23, at 7 p.m., and April 23 and April 24 at 1 p.m. TCA is located at 700 W. Rio Salado Pkwy. in Tempe.

Tickets, ranging from $40 to $55, are on sale by calling 480-350-2822 and at www.tempe.gov/tca.

For further information please contact: Stephen Wade Nebgen (480) 463-3055

snebgen@azentertainmentlaw.com

Facebook: “From Gumm to Garland: Judy The Musical”

www.Judythemusical.com.

Art Link = Missing Link

2011-03-13T19:35:00Z

ART LINK = MISSING LINK

Claire Lawton, of the New Times, has commented on the grave state of affairs at Art Link. Entitled "Missing Link", the article comments on the sad deterioration of Art Link and the growing disgust of the downtown arts community. Despite repeated requests by the downtown arts community to reform its practices and get back to providing services in a timely manner, Art Link continues to operate in the same dysfunctional way that has lead to its growing irrelevance. There is a palpable sense of outrage in the downtown arts community directed at Art Link's (think Sloane Burwell) continued failure to listen to, let alone respect, the concerns of the gallery owners, studio operators and creative artists.

There will be more on this - this is far from over.

ANNOUNCEMENTS!

2011-02-05T03:39:00Z

TWO ANNOUNCEMENTS

A. Law Course Starts at The Film School at Scottsdale Community College.

"Entertainment Law: A Primer" has begun its inaugural semester and is off to a great start! We have almost a full class (very unusual for a new class), and we added students after the first day of class (generally a class will lose students). I am very excited to be allowed to the teach this course.

Additionally, this course will become part of a study track for those wishing to be producers in the film industry. The Film School at SCC will be one of few film schools in the country that offers such a track!

Other exciting plans at The Film School include the breaking of ground on a new film studio complex and the pairing up with Northern Arizona University to offer a four-year degree in Film Production!

I am proud to be part of such a vibrant Film School!

B. Election as Member-at-Large for the Arizona Production Association (the "APA").

I am also proud to announce that I was recently elected as the Member-at-Large to the Board of Directors (the "Board") for the APA. As the Member-at-Large, I am responsible for bringing the concerns and suggestions of the rank-and-file members to the attention of the Board.

The APA is a non-profit trade organization of Arizona production professionals. The mission of the APA is to promote, encourage and advance the growth of the film, theatre and television industries within the State of Arizona and to improve the status and skills of its members.

It is the largest and most influential statewide group in the entertainment industry and publishes the official production guide for the state of Arizona, both in hard copy and on the web (http://www.azproduction.com/).

Entertainment Law Course Begins Today

2011-01-21T15:58:00Z

I am very excited to commence teaching my course on Entertainment Law in The Film School at Scottsdale Community College! The first class is today and I am excited to get in front of the students and get going! I will keep everyone posted.

HAPPY NEW YEAR (and New Projects)

2010-12-29T22:11:00Z

I want to wish everyone a great New Year! I really believe that 2011 is going to mark the turnaround for the economy and everything that goes with it.

HERE'S TO A GREAT 2011!!

HAPPY HOLIDAYS (And New Phone Number)

2010-12-24T18:12:00Z

Best Wishes for a great Holiday and Happy New Year!

Also, please note the new phone number for the firm! (480) 463-3055.

Reminder on SCC Entertainment Law Course

2010-12-21T01:10:00Z

Just a quick reminder that registration has opened at Scottsdale Community College for the Spring Semester and my entertainment law course. The first day of class is Friday, January 21, 2011 from 2:00 p.m. to 4:30 p.m. The first day of class and the second-to-last day of class (for review) are in the classroom. The other class sessions are presented on-line. The combination of flexibilty in taking the course and the information presented makes this a valuable opportunity for both students and those already embarked on their production career!

JUDY: THE MUSICAL - AUDITIONS

2010-12-14T03:59:00Z

I am proud to be legal counsel and a producer of this new musical on Judy Garland.

MUSICAL AUDITIONS: JUDY: THE MUSICAL - Auditions will be held at Phoenix Theatre (100 E. McDowell) on January 5 and 6, 2011 from 4:00 p.m. to 8:00 p.m. and call backs on January 7, 2011 from 4:00 p.m. to 8:00 p.m. for a new musical about Judy Garland. The production dates are April 18 through April 24, 2011 at the Tempe Center for the Arts. The musical will star Paige O'Hara (Belle in "Beauty and the Beast" and currently appearing in "Menopause: The Musical" at the Luxor in Las Vegas). The production needs experienced actor/singer/dancers from the age of 16 to 65. Please prepare a 32-bar segment. Be prepared to cold read from the script. Accompaniment will be provided but you may bring your own. PLEASE E-MAIL YOUR HEAD SHOT AND RESUME TO: m@michaelmarkowski.com. A representative of the production will contact you to schedule a time for your audition. Equity actors will be paid pursuant to a Guest Artist Contract and non-equity actors will be paid a stipend.

Gracie's World Book Signing

2010-12-13T02:22:00Z

My client, Sharon Schmitz, will be signing copies of her children's book, Gracie's World, on December 18, 2010
from 9:a.m. to 11:00 a.m.

Desert Tails Animal Clinic
9619 N. Hayden Road Suite #111
Scottsdale, Arizona 85258

Gracie's World makes a wonderful Christmas gift. Check it out at www.graciesworldadventures.com!