FINAL EXAM

ENTERTAINMENT LAW SURVEY

FALL 2006

PROFESSOR ASHBURNE

 

TWO QUESTIONS,  EACH  WORTH A TOTAL OF 50  POINTS

 

First Question

 

A new rap artist, 17 year old Rod “25 cents” Chang, has burst onto the Bay Area rap scene captivating audiences with his performances. He is very photogenic and writes all his own lyrics. Before his 18th birthday, Rod is approached by an infamous LA manager, Jim , who is also an attorney. He buys Rod a Gold Plated I-pod and immediately signs him to a 7 year management contract at a 40% commission rate on all his entertainment income. Jim explains that Rod is getting a bargain because he is going to render legal services and management services for the same fee. He says that Rod doesn’t need another attorney to look at the agreement because the agreement is very fair by industry terms.

 

Jim also owns Jingle Music, a publishing company. After Rod turns 18, he talked Rod into signing a separate publishing agreement with Jingle, again telling Rod he didn’t need another attorney involved. That agreement called for Rod to assign 100% of the copyrights to the songs that he writes for the next seven years to Jingle. Under that agreement, Jim pays Rod 40% of the income from all songs. Jim also expects management commissions to be paid on Rod’s share of the publishing income as well.

 

Jim proceeds to book Rod on a 50 date tour opening for 50 Cent. Jim  explains that although he is not a licensed talent agent, he knows as much as a talent agent and they can save the booking fee since he is an attorney and knows more than they do.

 

Part A. (25 points)

 

After the tour, Rod comes to you for advice. Rod discloses that he misled Jim into thinking he was over 18 when he signed the management agreement.  Rod  asks if you think the terms of his management and publishing contract were fair. If not what would industry standards be for such contracts? Lastly, what legal recourse, relief  and theories can Rod assert with regard to the management and publishing contracts he signed with Jim and why? 

 

At age 16, Rod had a modeling session with Mr. Flash, a commercial photographer.  No money was paid, but Rod’s Mother signed a release on his behalf giving the photographer the copyrights to the pictures and the right to use his name and likeness for any purpose in any media except the internet worldwide.  In exchange, the Mother received copies of the pictures she could use to create a portfolio for her son to use for future modeling work.

 

Part B. (25 points)

 

Following his successful tour, Rod finds that one of the pictures that was taken by Mr. Flash  is being commercially used by Playgirl for their magazine and website. Playgirl obtained a license to use the photo from Mr. Flash but not from Rod or his Mother. Rod finds the photo embarrassing and wants to get an injunction against Playgirl to prohibit further use of the photo on the internet and in their magazine. What do you advise?

 

Second Question

 

 Rod’s touring, recording and performing career continue to blossom over the next several years. He decides to write a treatment for a book about a rap star in Oakland, who goes to prison for a violent crime and later becomes a star politician with a national following.

 

Rod was offered an exclusive 3 year representation agreement with the Sharp agency in New York City. The agreement called for a 30% commission and had a clause that called for the commission to be paid on any publishing offer accepted by Rod up to 2 years after the end of the agreement, regardless of how secured.

 

            Part A (15 points)

 

Rod comes to you after the Sharp agency offer is made.  He wants to know whether the terms of his Sharp agency are typical for such agreements. What is your advice? What terms would you have suggested that could have been improved to Rod’s benefit?

 

 

Rod signs with Sharp and they obtain a publishing offer from Bigtown Publishers. The publishing contract provides for a $20,000 advance upon execution of the agreement and $20,000 when a manuscript “satisfactory in form and content to the publisher” is delivered. There is a 3% author’s royalty on book sales. Bigtown wants to own the copyright to the book, the movie and television rights, the audio rights, digital rights, merchandising rights, and the paperback rights with no additional advances. Bigtown does not have the resources to release the book in any form except hardback form.

 

            Part B  (20 points)

 

Rod asks you whether the terms of the Bigtown offer are fair and reasonable. If not, what improvements could be sought for his benefit? What possible compromises could be offered to the publisher for these improvements?

 

Rod signs the deal and has a contractual delivery date for the manuscript of one year from the execution of the agreement. The contract is signed and Bigtown assigns an editor to work with Rod on the manuscript.  The first draft takes much longer than it should and is not promising. The editor makes many suggestions for improvement, but Rod goes on tour and does not respond. The one year deadline comes and Rod asks for and receives a six month extension from Bigtown, claiming that he is working hard on revising the book according to the editor’s suggestions. Finally, the book is turned in and is actually worse than the first draft, incorporating few if any of the requested changes.  Bigtown declines to accept the book and demands repayment of the $20,000 initial advance.

           

Part C  (15 points)

 

Following Bigtown’s demand for a return of the $20,000 advance, Rod comes to you for advice. He does not feel he should have to return the advance since he did his best and delivered the manuscript. He points out that he showed the manuscript to the president of his record company who felt it was very commercial,  so he feels that it could not have been as bad as Bigtown claims.  The record executive told him that based on his experience in the record industry, he should not have to return the advance. What is your advice as to his chances for defending against Bigtown’s lawsuit?