A singer-songwriter turns up at your office, a handsome, bespectacled young man holding an iPhone and headphones. You open the conversation as you would with your other clients, and as you imagine priests and psychologists would start off with their clients. “Tell me about things,” you say simply. “How can I help?”
The man looks so angry and helpless that you feel for him immediately, regardless of what the story might be. He believes that someone stole his creative work, and he wants you to tell him what can be done to make things right. The iPhone is placed on the table, and the headphones go into your ears.
“Listen to this” he says “and tell me that you as a lawyer don’t hear what the problem is.”
Let’s stop for a minute here and take note of the dispute (which is, at this time, more the subject of hand-wringing than of litigation) between Jonathan Coulton and Fox Music. This Wired Magazine article provides a solid summary of how Jonathan Coulton came to believe that his music was used without his permission in the television show Glee. Many other articles go into the particulars of the legalities, which I won’t rehash here because you can read online. (And to be abundantly clear, I don’t work with JC.)
Now let’s skip back to the young man and think not about the answers that you will give him, but the questions that you as an attorney should ask him.
- Did you write this song?
- Do you own or control any part of the song for the purpose of sync licensing?
- If not (because someone else, specifically Sir Mix-a-lot) wrote the song, did they use your recording of the song in the final sound mix?
- If they didn’t use your recording in the show, did they dress up some actor to make it seem like it was you performing?
People in law school make a lot of flow charts, but the flow charts are basically just a vizualisation of a series of questions that you ask to get to the answer.
By the way, if the impassioned young man answered “no” to the questions above, you might want to not only explain his legal position (not an awesome one) but also have a conversation with him about the film and television licensing industry to give him a sense of how small it is and how people in the industry just trade jobs with other people in the industry. You see the same names all the time over a period of years. You need to ask yourself if have to (or want to) work with those people ever again at some point.
Of course, the young man may already have a fantastic career without the film and TV placements. Perhaps he has a loyal, tech-savvy fanbase and perhaps he plays on cruises, at SXSW and at gaming conventions.
But these are the things that you would ask him if you were me and it was your job to tell him the answer and give him options. Begin with the questions.