Music Law 1 Vocabulary

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Ab Initio

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From the beginning. An act made void ab initio is deemed to have legal effect at anytime. (See "nunc pro tunc")

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Accede

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To consent, agree or acquiesce.

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Acceptance

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Unqualified agreement in response to an offer. Qualified or conditional agreement amounts to a counter offer, rather than acceptance.

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Accommodation

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Arrangement made as a favor to another, without consideration in return. (See "consideration")

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Accrue

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To arise, happen, come into being. To become due or actionable.

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Advance

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(1) Payment made prior to the time when it would otherwise become due. [See "advance clause"]

(2) Preparatory work undertaken prior to a show or event to verify that venue, local advertising, local promotions, accommodations, and other logistical considerations have been completed and are ready. [See "advance man."

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Alienation

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Transfer of title to property, voluntarily and completely. The right of alienation - i.e., the right to lawfully dispose of one's own property - is a fundamental right.

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Ambiguity

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That situation which exists when contract language is subject to more than one legitimate interpretation, so that it's intended meaning and effect is uncertain

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American Rule

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Doctrine which provides that, in the United States, each party to lawsuit must bear the expense of its own attorneys fees unless there's a contract which specifically provides for recovery of such fees, or a Statute which authorizes an award of attorneys fees for the particular cause of action plead or proven.

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As is

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In sales contracts, the statement that the subject matter is being conveyed in whatever condition it may then have, with the conveying party making no warranty as to its condition or suitability, and which the purchaser assuming all risk in regard to its usability.

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Audiovisual

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Referring to a work compromised of both sounds and visual images, Such as a motion picture or a music video. (See "sync focus.)

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Bonus

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Non refundable, non recoupable payment which is not deducted from or credited toward earned royalties

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Cap

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Common term for maximum, usually established within a contract by a statement that some calculated payment, or accumulation of payments, will not exceed a stated fixed sum or percentage.

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Caveat

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A warning. Literally," beware" (Latin)

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Concurrent

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At the same time. Simultaneously.

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Constitution

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A fundamental, underlying agreement which forms the foundation for all laws and governmental operations. In addition to the Federal Constitution, each state has its own Constitution which governs that State's laws.

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Construction

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The act of interpreting, analyzing, and determining the intended meaning of a legal writing such as a contract or statute.

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Contingency

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Some eventualities which may not occur, before with some pre-planning is none-the-less prudent

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Covenant

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An enforceable promise, generally memorialized within a contract or recorded instrument.

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De minimus

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Of minimal or minor importance.

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Discretion

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The power of a judge, public official, or a private party, to make a decision based upon a personal perception rather than upon some strict rule. That which one may do, as distinguished from that which one is required to do

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Entity

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Generic term for any "person" including a corporation, partnership, institution, company or other form of recognized existence.

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equity

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(1) (Business) an ownership interest in a business.

(2) (Business) difference between value of property and debt accrued against that property.

(3) (Law) Justice administered by Court without Jerry according to principles of fairness as distinct from strict adherence to a statute or common law. Denotes actions and conformity with the spirit of justice and fairness. Actions and Equity include declaratory relief injunctive relief and other "Equitable" remedies.

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Equity

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In the United States, the union (Actors Equity) which represents actors who appear in live dramatic stage Productions, as well as the stage managers and directors of such Productions. In the U.K., Equity is the union and all media (stage, TV, film and radio.)

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Express

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Actually stated in direct, unambiguous, distinct language.

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Full faith and credit

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Article IV, Section 1 of the United States Constitution requiring each state to accept acts of each other state as proper and lawful.

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Gamut

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The entire range or scope of something. Contraction of gamma-ut (Medieval Latin) the ride from gamma (the third letter of the Greek alphabet) used to represent the lowest musical tone on the medieval scale Plus ut, which denoted the highest note on that scale. The medieval scale was derived from the initial syllables of Latin hymn; ut, re, Mi, fa, sol, la, si. Ut and si later became the now-familiar do and ti.

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Genre

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Literally "type or "kind." French. A style or category of artistic composition marked by a distinctive form, content, or intended audience

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Germane

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Relevant; pertinent; applicable.

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Habeus corpus

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Literally, "you have the body." (Latin) proceeding to compel a Judicial determination as to the legal sufficiency of due process. The right to habeas corpus was considered so essential that it is one of the only two specific individual rights included within the body of the Constitution rather than within the subsequent Bill of Rights. ( the other individual right is trial by jury in criminal cases.)

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Inter alia

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Literally "among other things" (Latin)

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Legal fiction

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An assumption of fact adopted by the court for convenience in deciding a legal question. Example that a corporation is a person.

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Legislative intent

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The purpose of the legislature in enacting any particular law the intended function and effect of a law. In interpreting a statute the court may look to the legislative intent underlying that law to assist in determining how that law should be applied.

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Magna Carta

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Literally "Great Charter" (Latin) the Magna Carta was signed by King John and 1215 and is generally regarded as the foundation of all subsequent English and the American constitutional rights. Note however the distinction between the charter (rights granted by a higher, Sovereign Authority) and a constitution (rights declared by the people for themselves.)

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Mandatory

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That which is absolutely demanded or required.

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Pecuniary

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Related to money.

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Qua

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As. In the capacity of nature of. E.g., "trustee qua trustee," refers to the trusteeship itself, as distinct from the person who holds that position.

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Quasi

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Literally, "as if." (Latin) Almost; similar to; analogous to; resembling.

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Quid pro quo

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Literally, "this (thing) for that (thing)." (Latin) Mutual exchange of consideration between parties. Value to be given, in exchange for Value received.

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Salient

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Prominent; important. Particularly noteworthy, relevant and material. The "high points" of an issue or agreement.

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Sine qua non

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Literally, "without which, not." (Latin) that which is fundamental and essential. The basic reason and purpose, without which there is no reason to proceed. An absolute essential, primary element.

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Supra

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Literally, "above." (Latin) used as an internal reference in pleadings, briefs, opinions and other writings, directing the reader's attention to something appearing earlier in the same documents. E.g. "The decision in Jones v. Smith (cited supra) states..." C.f. "infra."

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Supremacy clause

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Provision of the US Constitution (Article VI, clause 2) which states: " this Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made or which shall be made under the authority of the United States shall be the supreme law of the land and the judges in every state shall be bound thereby anything in the Constitution or laws of any state to the contrary notwithstanding." The supremacy clause requires that in any conflict between federal law and state law the state law must yield and that federal law governs (see also preemption.")

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Tacit

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Understood, implied or inferred, without having been specifically stated. Silent.

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Transaction

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Any activity involving two or more parties or things in which both or all parties are affected or influence in some way by that activity. (Note: In Louisiana "transaction" has a special, defined legal meaning, generally equivalent to "accord and satisfaction."

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Unconstitutional

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Anything which violates the provisions, protections or guarantees embodied in the United States Constitution or its amendments, for the constitution of any of the several States, or their amendments. In particular, referring to any action of the state or federal governments, or of governmental Representatives, or a Statute, regulation, rule, judgment, court order or opinion, which violates a Constitutional provision, protection, or guaranty.

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Willful

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Consious; intentional; by design.

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Unambiguous

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Clear. Not subject to more than one reasonable interpretation. Devoid of internal inconsistencies and contradictions.

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Unconscionable

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(1) descriptive of any intentional act or conduct which is grossly unfair to another person, and shocking to the conscience of an average person.

(2) in contracts, that which is manifestly unfair to one party, and I'm reasonably beneficial to another, usually under circumstances where the less Advantaged party was afforded no meaningful or informed opportunity to accept or reject such conditions, or to recognize their implications.

Unconscionable contract terms include, but are not necessarily limited to, gross one-sidedness in disclaiming warranty, unreasonable limits on damages, exculpation for wrongful acts, or otherwise obtaining unreasonable or unfair advantages.

An unconscionable contract may also be inferred from the fact that one-sided Provisions are obscured through use of small print or obfuscation language, or where the less advantaged party is particularly susceptible.

Unconscionability Maybe procedural ( based on the manner in which a contract was induced or formed), or substantive (based on unfairness within the contract itself.)

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Verbal

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In words, either spoken or written. Express.

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Writing

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(1) the act of putting information,communications, thoughts, ideas, opinions, or feelings into tangible form.

(2) a document, in any format or medium.

(3) any tangible means for the preservation of information, thoughts, ideas, opinions, or feelings including, but not necessarily limited to, handwriting, typewriters, printing, photostating, photographing, photocopying, transmitting buy electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combination thereof, and any record thereby created, regardless of the manner in which the record has been stored.

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Abandon

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To relinquish with intent of never resuming right or interest.

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Assignee

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One to whom a right,interest, or property is transferred by assignment.

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Coogan Trust

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Blocked, interest-bearing trust account into which some states require that employers of minor performers must directly deposit of percentage usually 15% of the minors income. The deposited funds are unavailable except by court order, until the minor achieves his or her majority.

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Chain of title

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Succession of persons having actual possession of evidence, in unbroken sequence from time of its origination or collection until it's presentation in court. Where an unbroken chain of custody cannot be established, evidence may be subject to exclusion. (see "Foundation")

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Clearance

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Permission to use copyrighted work or other protected right (e.g. personality rights, trademarks, etc.) With or without payment.

Process by which the validity of all necessary permissions licenses and rights of us are verified prior to use.

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Constructive

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A legal fiction, where in something is deemed to have occurred by operation of law, although it may not in fact have actually happened

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Common law

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Body of law, both written and Unwritten, which originated in England and which forms the general basis for most American jurisprudence. Common law is derived from ancient usage and Custom and from the decisions of Courts interpreting such law over centuries and is distinguished from statutory laws which have originated the legislative Acts. There's no federal common law per se but federal courts apply the common law of whatever state is applicable to the issue at hand based upon choice-of-law and conflict of laws determinations (C.f., Napoleonic code.")

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Consideration

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An element of contracts, consideration is that which one party gives to another (e.g. money) in exchange for the consideration received from that other party (e.g. goods or srevices.)

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Contractor

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Who perform services for another not as an employee but as an independent business venture.

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Counterfeit

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Forced, false, and imitation. To make copy without Lisence or right.

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Executory

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Something required as by contract but not yet performed or done.

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Fungible

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Those items of property which are completely interchangeable with each unit there of being identical in nature and value to any other equal unit. Fungible property may be readily distinguished from non fungible property by comparison of one unit to another. If there are unique material characteristics the property is not fungible. Example two copies of the same edition of the same book by the same author in the same binding neither of which has been altered by a notation maybe fungible a first edition and the recent paperback copy of that same book or not.

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Goodwill

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An intangible asset of a business based on his good reputation and the existing relationships.

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House mark

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Trademark or trade name which denotes a particular business entity rather than a product or service.

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Illegal

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That which is in violation of a statute regulation or ordinance. Contrary to some specific law.

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Implied contract

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An agreement which is found to exist based on the circumstances and the conduct of the parties although they never produced the terms of the agreement to specific words.

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Implied Covenant

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A promise which is imputed to a contract although not specifically expressed in words within that contract. See good faith.

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Inherent

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Implicit. Automatically included. Descriptive of a quality or condition which is always present within something else. Integrated into a constant part of a larger whole.

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Instrument

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Any written legal documents such as a contract lease deed Bond certificate or will.

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Intangible property

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Items which represent value but which have no intrinsic worth themselves such as stock in a company.

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Intellectual property

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A general legal term referring to certain types of information, ideas and other intangibles - and to their expressed (tangible) forms - under a legal Doctrine which states that creative products of the Mind are as entitled to legal protection as are other forms of property. The rubric intellectual property refers to all forms of creative art and expression and includes copyrights patents trademarks trade secret logos plans and other forms of creative artistic and intellectual expression even though the laws governing and protecting each type of intellectual property may be separate and distinct from each other.

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Intrinsic value

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The commonly acknowledged market value of something by reason of its inherent qualities and features without regard to subjective criteria for valuation. Example a twenty-dollar gold piece has an intrinsic value based upon the current market price of gold which would likely far exceed the $20 face value of the coin.

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Lanham Act

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More formally known as the trademark Act of 1946 the Lanham Act (15 U.S.C.Ss 1051, et seq) contains Federal statutes governing trademark law in the United States. The ACT is not the sole source of us trademark law since both common law and state statutes also control some aspects of trademark protection.

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Libel

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Publication of false defamatory material about another by means of print or images.

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License

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Permission to perform a particular Act.

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Logo

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A unique iconic emblem and or type Style adopted by a business group or individual as an identifying mark. See also trademark.

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Meeting of the minds

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A common understanding between Contracting parties as to the terms of their contract.

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Memorandum

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A brief writing, note, summary or outline.

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Memorialize

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To put into writing. To create a record of some agreement transaction or event.

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Name and likeness

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Unique identifiable attributes of a person generally including the person's name voice likeness and biographical information. These so-called personality or publicity rights are protected against unauthorized commercial use under common law and in some states by Statute. Further these rights have been held to be inheritable in many jurisdictions and to accrue to the benefit of a deceased personality's estate.

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Nominative fair use

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Legal Doctrine which permits the use of another's proprietary name or Mark in circumstances where it is used descriptively for comparison criticism or for editorial or biographical purposes particularly where no alternative word or phrase would suffice to communicate necessary or intended information.

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Obligation

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Legal duty to do some particular thing or to refrain from doing some particular thing.

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Offer and acceptance

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Method by which a contract is created and becomes effective. Once an offer has been accepted without conditions and any consideration has been given in reliance a contract exist as between the parties.

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Option

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That which one may choose to do or to not to do. An agreement or provision within a contract which sets forth conditions under which a party to the agreement has the right to do or to not to do some particular thing or to require the other party to do or to not to do some particular thing.

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Oral contract

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Agreement made in spoken words without reducing them to a writing. Colloquiallt, oral contracts are frequently but erroneously referred to as verbal contract. Since verbal means "in words" both the written contracts and oral contracts are verbal.

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Parol evidence rule

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Judicial rule of evidence which generally prohibits oral testimony as to the contents of a written document on the ground that the document speaks for itself. The rule does not forbid oral testimony which is consistent with a reasonable interpretation of the terms of the writing but rather such testimony as would tend to contradict or modify written terms.

Although its name suggests that it is a procedure rule the consensus is that the parol evidence rule constitutes substantive contract law.

Generally any evidence which directly contradicts written terms will be excluded under the parol evidence rule regardless of whether the contract is wholly or only partially integrated but for a partial integration evidence which merely add to the contract terms will not usually be excluded. See extrinsic evidence.

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Party

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(1) Any of the name participants in a lawsuit or other legal proceedings. See litigant.

(2) any person or entity Bound by contract to perform some obligation under the contract.

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Patent (1)

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Obvious. Clear. Manifest. Unquestionable. Obvious. Patent facts are those which no one is likely to suggest or anything other than factual.

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Patent (2)

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Generally any grant by government authority of some privilege property or authority. More commonly a patent refers to a legal Monopoly granted for a limited time buy government license for an Innovative work of creative invention or Improvement. Literary and artistic works are not patentable or maybe protected similarly to copyright. There are three basic types of patents Utility Patent design patents and plant patents.

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Personal property

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All property which is not real property.

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Personality rights

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The right of an individual to control public exposure of his or her personality either by preventing such exposure or by licensing it for consideration. See name and likeness and privacy and publicity right of.

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Property

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Anything of value which is or can be owned and the ownership of which can be held by different people at different points in time. That which is both valuable and alienable.

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Quasi contract

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Circumstance in which the court will in the absence of a valid contract nonetheless treat the parties as Contracting parties to avoid unjust enrichment of one party at the expense of the other.

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Quitclaim

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Type of deed given without warranty of title in which the person giving it conveys to another any and all such rights as he or she may have in respect to describe real or personal property without guarantee that any such right actually exist.

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Real property

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Land, including all structures which are firmly attached thereto, all improvements permanently affixed to such structures and all vegetation growing upon that land.

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Release

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(1) to give up a right or Claim by releasing another (the releasee) from obligation to the person giving the release (the releaser).

A release may be a partial release releasing only part of a claim or a general release giving up all known claims.

Also by the inclusion of certain specific language a general release May eliminate other legitimate claims which the release or does not know exist. Caution should be there for the exercise in signing any general release.

(2) written instrument by which release is given.

(3) permission to use another's name voice likeness or biographical material in connection with a commercial venture.

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Reputation

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Community opinion of a person or entity. One's good name and character.

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Res

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Literally "Thing." (Latin) the subject matter or object of any communication discussion or dispute.

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Service mark

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Distinctive emblem design logo type Style or visual representation used by business and respect to a service ( as distinct from a product). Service marks are equivalent in all other respects the trademarks and may be registered. Following registration service marks May utilize the circle R emblem. Unregister service marks may use the SM symbol. See trademark.

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Slander

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Defamation of another by Spoken Word. See definition and libel.

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Slogan

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A short memorable phrase used in advertising or associated with a company product service project movement Association or group. See Service mark.

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Statute of frauds

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Law which requires that certain types of agreements must be made in writing and not orally. Most notably and historically and agreement affecting title to real property must be made in writing. Additionally writings are generally required for a contract made in consideration of marriage a contract for more than one year and agreement by an Executor to pay for estate expenses a contract for goods valued at more than $500 ( accepting professional and custom Goods), and the promise to pay the debt of another.

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Strict construction

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Interpretation of the Constitution or the statute or rule in the narrowest possible manner ensuring nothing which does not appear in the plain language thereof.

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Survivorship

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Right to receive full title or ownership help on the death of a joint tenant.

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Tacit admission

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Failure to deny estate Mentor accusation which a reasonable person would deny. Conduct from which an admission or acquiescence regarding a particular statement may be reasonably inferred. Such failure or conduct may be legally interpreted as an admission that the subject statement or accusation is true.

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Tangible property

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Property which has actual physical reality. Example chair couch. As distinguished from intangible property. Example the Goodwill of a business. That which can be physically measured and located in place and time.

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Tender

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An offer or value without further condition. The actual proffer of value rather than the promise to do so. Sender immediately precedes delivery which occurs the instant recipient accept possession of the sender. Note that the US currency declares on his face that it is legal tender which can be proffered to another as payment.

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Term

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(1) period of time during which a contract is to remain in effect. A fixed period.

(2) the period of time during which something continues. Example term of office a jail term term of pregnancy.

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Territory

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And the same geographical or geopolitical location or a particular demography. And Licensing the license may be Universal or limited to a particular territory or it may specify a particular Market segment.

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Third party

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Any person who is not party to a contract or transaction. One not directly in privity.

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Timely

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On time. Within the period of time allowed.

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Tort

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A civil wrong. Example the crime of theft is also the tort of conversation for which a civil remedy exists.

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Trade dress

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An inherent non functional distinctiveness or style of a product or service which may include future such as size shape color or color combinations texture Graphics or even particular sales or presentation techniques. Innocence trade dress is the commercial equivalent of personality. Those elements of presentation which taken together evoke the unique identity of a commercial product or entity. A competing you switch evokes the overall style sense and image of another's product May therefore be regarded as a trade dress infringement under the Lanham Act.

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Trade name

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Name of a business or of its products or Services which by continued use and commerce has acquired General recognition and has become a valuable property of that business. Trade names enjoy protection under the Lanham Act regardless of whether or not they have been registered as a trademark or service mark although unregistered trade names are not afforded all of the remedies which are available for federally registered marks.

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Trade secret

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Process method plan formula or other information unique to a particular business and the value of which it is dependent in whole or in part upon its remaining Secret.

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Trademark

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Distinctive emblem design logo type style representation used by business. Trademarks may be registered and thereafter utilized to Circle r emblem. Unregistered trademark may use the TM symbol. See Service mark.

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Unfair competition

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Generally any active dishonest misleading or fraudulent nature which adversely affect the business of a rival. Particularly efforts to substitute ones own products or services for those of a competitor in a market where the competitor has established a good reputation values of confusingly similar names packaging advertising or other means which have a deceptive effect on consumers.

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Unfair Trade Practices

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Prohibited business conduct which improperly interferes with a competing product or service or which has the effect of confusing or misleading the public and respect to such competing product or service. See Lanham Act.

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Unlawful

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That which is either: (a) contrary to an express provision of law; or, (b) contrary to the policy of Express Law, though not expressly prohibited by that law; or, (c) otherwise contrary to good morals.

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Unliquidated

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Something of value which has not been converted into money or as to which the monetary value has not been calculated, ascertained, or agreed.

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Use in Commerce

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Term used in connection with trade names and marks. Legitimate used in Commerce is an essential element prerequisite 2 protection of trade names trademarks service marks and trade dress. A common law legitimate used in Commerce will establish priorities priority and precedence even in respect to registered marks at least within geographical areas where the common law Mark has been in Prior continuous to use. A fraudulent or otherwise not legitimate use accrues no priority.

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USPTO

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Acronym for United States patent and trademark office. Frequently shortened to PTO.

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Usurp

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To take over the authority rights office privileges or property of another without right through guile or by force.

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Vend

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To sell.

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Vendee

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A buyer.

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Vendor

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A seller.

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Verbal contract

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Houston used erroneously as a synonym for oral contract a verbal contract is one which has been expressed in words whether oral or written as distinguished from an implied contract. Synonymous with express contract.

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Void

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(1) generally without form or substance. Empty.

(2) that which is wholly without legal force or effect. A void agreement is to be distinguished from a voidable agreement. See voidable.

(3) to cancel or anull. To make something to be without legal force or affect either voluntarily or by court order or by legislative or executive action.

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Voidable

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That was can be declared void by reason of legal defects usually at the option of the party adversely affected thereby.

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Waiver

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The voluntarily giving up of a right privilege or benefit either knowingly and informedly, or through an inference which may be drawn from one's conduct.

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Zone of privacy

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Those areas of each person's life in which there is a reasonable expectation of privacy which may not be invaded by the public the press or by governmental agencies without due process. The extent of the zone of privacy varies based on the character of the person asserting it. Example a public figure has a smaller zone of privacy than those of an ordinary person. See public figure.