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104 Cards in this Set
- Front
- Back
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What are the two types of speech?
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Pure - Written or spoken word
Symbolic - Intend to send a particular message & is likely to be understood by the audience |
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What are the two types of restrictions on speech?
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Content Based - What is said is restricted
Content Neutral - Speech restricted without regard to content. Time, place and manner restrictions |
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What kind of restriction does not restrict what is said, but rather restricts the time, place or manner of speech?
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Content Neutral
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What three things must be shown to prove that the speech is incitement to violence?
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Intended to incite criminal action
That is imminent And likely to result |
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What type of speech is unprotected, has no safe harbor, and may even result in criminal penalties?
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Obscenity
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What group was responsible for causing the RIAA to place warning stickers on albums?
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The PMRC
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Of all forms of communication, which receives the least First Amendment protection?
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Broadcasting
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What is "safe harbor"?
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The hours between 10pm and 6am have been designated a "safe harbor". During this time, a radio station may broadcast indecent or profane material.
Safe Harbor NEVER applies to obscene material |
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What is the name of the administrative body which regulates interstate communication by radio, wire, television and satellite?
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The FCC
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What was the regulation at issue in Ward v. Rock Against Racism?
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Had to use the cities sound tech and amplification
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Was the restriction put forth in Ward v. Rock Against Racism a valid restriction of speech? Why or why not?
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Yes.
Because it was content neutral |
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What is the purpose of antitrust laws?
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1) To protect the economy and ensure competition
2) Prevent restraints on trade 3) Prevent monopolies 4) The purpose is to protect competition, not consumers |
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Name the three ways marketplace competition protects consumers
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1) Lower prices
2) Better quality 3) Greater choice |
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Does the Sherman Act provide for criminal penalties, civil penalties or both?
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Both
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What are the three elements of a consent decree?
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1) No admission of guilt
2) Cease anticompetitive conduct 3) Not vulnerable to private suit piggybacking |
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What three elements must be satisfied to establish monopolization?
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1) Intent to control prices or destroy competition
2) Predatory or anticompetitive conduct 3) "Dangerous probability of success" in achieving monopoly |
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Define "market power."
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The ability to affect market price
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Clear Channel used Negative Synergy by limiting airplay of artists who didn't use its concert services. This is an example of which antitrust violation?
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Tying
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In any business, who has the responsibility to ensure compliance with antitrust laws, and thereby may be held liable for violations?
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Supervisors
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Define "Payola."
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The act of bribing radio stations in exchange for increased airplay of certain artists or songs. This includes money and other forms of consideration
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What must happen for pay for play to be considered legal?
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Listeners must be told about the arrangement
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What is "respondent superior?"
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Employer Liability
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Who may be held liable for the acts of a borrowed servant?
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The borrowing master
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Finish the sentence: An employer is liable only if the employee is liable only if the employee's acts were committed within the______
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Scope of Employment
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When are acts considered to be within the scope of employment?
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Only if the employee is motivated, in whole or in part, by a desire to serve the employer's interests
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When is an employer liable for the intentional torts of his employee?
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1) When it is a generally foreseeable consequence of the activity.
2) Done when the servant is engaged in the master's business |
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Define "fiduciary duty."
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One must act in the best interest of another
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Define "apparent agency."
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If a principal creates the appearance that someone is his agent, and an innocent 3rd party relies on the apparent agency and is harmed as a result, the principal can be held liable for injury cause by the negligent acts of his agent.
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Once an employer ratifies an act, may the employer later avoid liability? Deny an agency relationship?
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No
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What are the goals of negotiation?
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1) Produce a wise agreement
2) Improve the relationship |
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List the elements of a wise agreement
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1) Meets legitimate interests
2) Resolves conflict failry 3) Durable |
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What are the four steps of Principled Negotiation?
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1) Separate people from the problem
2) Focus on interests, not positions 3) Generate options 4) Base the result on objective criteria |
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Why is it so important for people to put themselves in the shoes of the other party?
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So you can understand their interest
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Explain "active listening."
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Listen actively and repeat what you've heard
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What are the two questions you should ask in order to identify interests?
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1) Ask why
2) Ask why not |
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What are some examples of fair criteria upon which the result of a negotiation can be judged?
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1) Fair standards
2) Market Value 3) Fair Procedure 4) Costs 5) Professional Standards |
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What is BATNA? Why is it important to know your BATNA?
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Best Alternative to a Negotiated Agreement.
Absolutely essential to know whether to accept alternative arrived at through negotiation versus ending negotiation |
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Under the "Negotiation Jujitsu" approach, why should you use questions instead of statements when dealing with a difficult or positional negotiator?
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1) Questions offer no position to attack
2) Questions do not criticize, the educate |
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What are the benefits of using silence when negotiation?
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1) People tend to feel uncomfortable with silence, especially when they have doubts of the merit of their position
2) Silence creates impression of a stalemate, which other side may feel compelled to break with statement or suggestion |
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What are some ways in which you can design a deal to minimize risks?
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1) They carry out their side of the deal first
2) Build guarantees into the agreement 3) Don't let them treat your doubts like a personal attack 4) Add a dispute resolution procedure |
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What is the fundamental priniciple of contract law?
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Freedom
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What are the five points of a valid contract?
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1) Unambiguous
2) Consideration 3) Capacity: age, mental ability, authority 4) No illegal acts 5) Mutual agreement |
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What is the Statute of Frauds?
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This covers areas which have traditionally been subject to fraud; hence the name
If an oral contract concerns one of these areas, the court will not enforce the agreement |
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What are the six types of contracts that fall under the Statute of Frauds?
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1) Cannot be performed within 1 year
2) Concerning interest in realty 3) In consideration of marriage 4) Assuming the debt of another 5) Sale of goods over $500 6) Assignment of copyright |
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What is the Mailbox Rule?
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Acceptance is effective (and offer cannot be withdrawn) once it has been mailed. This may be negated by the terms of the offer.
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What is the Mirror Image Rule?
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Acceptance must be unconditional and must not change, add to, or qualify the terms of the offer.
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Why is it important to read and understand the definitions given in a contract?
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It is the key to understanding the deal
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Define "Rider".
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Attached to an agreement for live performance. Sets forth special needs for performer, usually relating to food, beverages, dressing rooms etc.
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Define "Warranty."
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An express or implied promise that something is guaranteed. Must be strictly complied with.
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What is "Indemnity"?
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A duty to make good any loss, damage, or liability incurred by another.
To absolve another from any financial responsibility for damage or other liability arising from the transaction |
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An indemnity clause commonly follows which clause?
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Warranty
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Give the general definition of "Condition."
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A future and uncertain event on which the existence or extent of an obligation or liability depends.
Affects time or performance, specific dates or events The word "condition" is not often used |
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What is a Most Favored Nations clause?
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Clause which states that the party promised this status will receive as good of a deal as anyone else.
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Give the general definition of "Option."
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A privilege that one party may or may not choose to exercise. Usually refers to the ability to continue the term of the contract for an additional period
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What is the difference between a Material Breach and an Immaterial Breach?
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Material Breach -A failure so severe that it threatens the value of the whole contract
Immaterial Breach - A violation of an unimportant term or violates the contract in a minor way |
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Why would you include a Liquidated Damages clause in a contract? How must it be limited?
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1) It provides for a specific dollar amount to be paid if the contract is breached.
2) Limited by placing a ceiling on the amount recoverable for a breach |
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What does "term" refer to, and what are the two common forms this takes?
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Refers to duration of the agreement
Two forms - Flat period (years) and Options |
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In a recording agreement, which party has the right to exercise the option?
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The record company
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What is California Labor Code Section 2855? What effect does it have on options?
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1) Personal services contracts may not be enforced beyond 7 years
2) Most companies in the industry are sufficiently tied to CA, so jurisdiction can easily be obtained 3) Enforceability and viodability are very different 4) The contract may not be enforced after 7 years. The entire contract is NOT void and is still binding for the initial 7 year period |
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Give the definition of Option with a Condition Precedent
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Something must happen before the company can exercise the option
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What is an Option to Make Up the Difference?
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Company can opt to make up the number of albums in order to reach the figure. A credit usually is given to the artist's royalty account
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What is an Option Exercise Date?
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The date by which notice must be given for the exercise of the option to be valid
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What may happen if the recording agreement calls for an Advance With the Exercise of the Option, and the label fails to send a check with the notice of option?
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It is not a breach. It means that the option is not in effect. The label might have just lost the artist if there is no time left to cure this defect
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If the agreement calls for Automatic Exercise of an option, under what circumstance would the label have to give notice?
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Notice need be given only if the company chooses not to exercise the option
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What is a "recording commitment"?
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The artist's obligation to record a specified number of masters and deliver them to the record company upon demand. Usually a minimum commitment, so that the company may demand more.
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What are the terms to watch out for in the recording commitment?
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1) Commercially satisfactory
2) Chosen by company 3) Similar Style |
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When a minimum recording commitment is contained in a contract, what should the artist make sure is included in order to prevent overcall masters?
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1 year, negotiate a maximum
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What are overcall masters?
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Masters that are over and above the commitment amount
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List some of the elements that may be required for delivery
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Session tapes, licenses, artwork, credits
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What will happen to the artist if he fails to deliver? How is this different in an open-ended agreement?
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May result in automatic suspension. There is no automatic suspension in open-ended agreements. Instead, the term of the contract is extended.
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What is form I-9?
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US Immigration and Naturalization Service Employment Eligibility Certificate
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For what reasons might an artist be suspended?
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1) Failure to deliver masters in a timely manner
2) Inability to perform 3) Failure to "actively pursue a career 4) Any other breach, real or perceived |
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What happens to an artist when he is suspended?
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1) The agreement is essentially stalled until the artist cures the breach
2) Artist may be kept from recording 3) Stoppage of income 4) Possible destruction of the artist's career |
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Define "royalties."
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Generally - Money due for the sale of use of a product or right
Industry - Money due to an artist for the sale of that artist's recordings |
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Many factors may cause the royalty rate to vary. List them.
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1) How sold
2) Where Sold 3) Price 4) To whom sold |
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What is the formula for royalty computation?
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Sales price * Royalty Rate - Deductions = Payment
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What is royalty acceleration?
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Royalty rate is based on the amount of financial risk the artist poses to the label. Once the artist has proven that he is not a risk, he may be rewarded with a higher royalty rate
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Why do record companies hold reserves?
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Reserves are set up to balance out returns. One should equal the other.
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What are freebies? Why should an artist allow freebies?
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Albums given away for promotion. Important promotional tool for the artist.
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What is a container charge? Who pays for it?
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Also known as packaging charge or jacket charge paid for by artist
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Define cross-collateralization
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Income from one record (or contract) will be used to recoup the advance on another record and vice versa
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What things are considered recoupable expenses? Which is the largest cost?
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1) Any advance - signing, option or other
2) Recording Costs - Largest cost 3) Anything the label says is spend on behalf of the artist |
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Explain an All-In agreement
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A production company supplies an artist and producer to a label in exchange for an all-in royalty. The label agrees to one overall royalty from which all royalties are paid. The production company receives the royalty and distributes it to the artist and producer
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Within the context of recording agreements, what does "accounting" mean? What provisions should always be included in order to protect the artist?
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Means when the artist gets paid and they are protect with the right to audit
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Define "coupling". How can an artist limit this?
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Commonly known as compilations, a master is grouped with other masters and released as a package.
Limited by 'No coupling without artist's prior consent' |
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Define "joint recording"
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Two or more artist perform on one master
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What things are usually found in a Grant of Rights provision? Who are the rights being ranted too?
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Indemnity and the execution and delivery of documents. These rights are granted to the label
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Why would an artist want to limit an indemnity clause?
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So they are not responsible for the acts of a third party
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What effect does a rerecording restriction have on an artist?
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Does not stop the artist from recording for a third party, but only from rerecording the same material for the specified time.
Artist is not restricted from performing the composition in a live performance, television performance or in film |
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What is a morals clause? How should it be limited to protect the artist?
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Gives the label the right to terminate the contract for "immoral" acts of the artist.
Limit it by using definite language such as "convicted of a felony" rather than "tending to..." |
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What is a master purchase agreement?
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An agreement to purchase masters
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What are the two common provisions dealing with the ownership of musical compositions?
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1) The label (or an affiliated company) has the right to acquire an ownership interest in the artist's musical compositions
2) The company will pay a reduced mechanical license fee for the compositions |
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If an artist enters a copublishing deal with the record company, which compositions should be affected from the artist's point of view? From the label's?
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Artist - Only those compositions initially recorded during the term of the agreement
Label - An interest in all compositions written prior to and during the term of the agreement |
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Aside from producing and recording masters, what are the common duties of the producer?
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1) Prepare & meet budget requirements
2) Prepare & file session reports 3) Clear rights to compositions 4) Comply with union regulations 5) Obtain properly completed 1-9 forms |
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Should the producer be liable for recording costs? If so, how much?
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Only if over 110% of the budget
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In regard to publicity and advertising, what word should be included for the producer's benefit when granting rights to the label? Why?
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Use "shall" instead of "may"
This is promotion for the producer |
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What is an option agreement?
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A development deal
A trial run |
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What is the average recording commitment associated with an option agreement
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2 to 4 masters
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What two things are negotiated when referring to the double negotiation involved in option agreements?
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1) Terms of the option agreement
2) Terms of the recording agreement |
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What 4 different methods of Compensation can be used to pay the artist for a live performance?
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1) Percentage of gate
2) Flat fee 3) Guaranteed fee or percentage of gate, whichever is higher 4) Guaranteed fee plus a percentage of revenues |
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What will the venue want under a Merchandise Rider?
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15% to 40% of gross sales
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What is usually covered in Clippings and Posters Riders? Why would the artist want this?
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It allows the artist to review the press generated before and after the show. It is used to measure how well the venue promoted the event
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Why would the artist want to venue owner to sign an Insurance Rider?
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If the venue doesn't have insurance but signs this rider, the band can sue the venue if someone is injured because it relied on the venues promise of insurance
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What is a Cancellation Rider?
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Only for artist with bargaining power
Artist still gets paid even though the gig is canceled The close to the show date, the larger the payment |
