Artist Roundtable Presented by the Mason Sports & Entertainment Law Association and the Arts & Entertainment Advocacy Clinic

The following post comes from Austin Shaffer, a 2L at Scalia Law and a Research Assistant at CPIP.

By Austin Shaffer

On April 6th, the Mason Sports & Entertainment Law Association, in conjunction with the Arts & Entertainment Advocacy Clinic, hosted its Artist Roundtable event. Moderated by Professor Sandra Aistars of Scalia Law, the panel featured musician and producer David Lowery, filmmaker and photographer Stacey Marbrey, and author and director David Newhoff. To kick off the event, Prof. Aistars invited each of the panelists to introduce themselves and highlight any ongoing projects.

About the Panelists

Stacey Marbrey is an award-winning film director, producer, and internationally recognized editorial photographer and has programmed numerous film festivals. Previously, she acted as Program Director for an international film exchange under the auspices of the U.S. Department of State in concert with both the President’s Committee on the Arts and Humanities and the American Film Institute.

David Lowery is an American guitarist, vocalist, songwriter, mathematician, and activist. He is the founder of alternative rock band Camper Van Beethoven and co-founder of the traditional rock band Cracker. Throughout his career in the music industry, Mr. Lowery has worked in nearly every role imaginable, from both the business and music perspectives. Recently, he worked on a small project with limited online CD sales to experiment with a new revenue stream and business model. Mr. Lowery frequently posts at the popular blog “The Trichordist.”

David Newhoff is a writer and copyright advocate. He recently finished his first book, Who Invented Oscar Wilde? The Photograph at the Center of Modern American Copyright. He lives in New York’s Hudson River Valley, where he is currently working on his next book. Mr. Newhoff also writes the popular copyright blog “The Illusion of More.”

How do creative roles intersect with legal issues? What can lawyers do a better job of understanding when engaging with creators?

Mr. Lowery highlighted the importance of the intersection between the arts and legal roles. Unfortunately, he noted, there is a stigma in the artistic community regarding the use of legal action. He commented that, while you should generally attempt to resolve disputes internally, you cannot be afraid to use the legal system to enforce your rights. Even the legally savvy artists can misjudge the scope of the rights to which they are entitled. Mr. Lowery emphasized the need to provide artists with an “intervention”: register your works with the Copyright Office, guarantee your revenue streams with the Mechanical Licensing Collective, and enforce your rights.

On a similar note, Mr. Newhoff echoed the notion that some artists do not fully appreciate the scope of their rights and––perhaps more importantly—their obligations. It is not uncommon, he explained, for creators to assume that their publisher will handle all the legal responsibilities that go into creating a work (i.e., clearing photographs, obtaining permission to publish interviews, etc.). That assumption, however, leaves the author subject to potential liability for copyright infringement. Rather than taking that risk, Mr. Newhoff argued, creators should be proactive in fulfilling their legal obligations. 

Commenting on Mr. Newhoff’s observations, Ms. Marbrey remarked that, in many cases, creators wear many different hats and serve in various roles throughout the course of creating a work. Particularly in the film industry, it can be difficult for creators to keep their various duties and obligations separated and organized. Ms. Marbrey argued that this is one problem that lawyers can help to solve. By taking the time to understand the numerous roles in which a single creator may serve, lawyers can help to ensure that creators are getting maximum value out of their efforts.

The Stigma Against Contracts

The panelists each made unique observations on the use of contracts and how their respective industries tend to perceive them. Prof. Aistars pointed out a concerning trend: creators tend to have a negative view towards contracts and consequently refrain from using them. She commented that, in general, no one wants to be the person to involve lawyers in otherwise “friendly deals.”

The panelists shared stories from their careers that demonstrated this stigma. Ms. Marbrey, for example, worked on a collaborative project involving multiple SAG actors. The parties declined to set up a contractual framework to properly address various SAG-AFTRA requirements for actors. Consequently, the production was later paused to renegotiate deals with the actors after the film was already completed. Due to this misstep, the release of the project was delayed.

The panelists concluded that, while it may force some uncomfortable conversations at the onset of a project, creators should become more liberal with their use of contracts. Doing so allows for a mutual understanding between all parties before any time is invested into the creative process.

Current Trends to Watch in Copyright Law

This portion of the discussion offered a unique insight into the development of copyright law from creators’ perspectives. While the conversation was wide-ranging, there were several common topics that the panelists found especially significant.

The panelists came to a consensus that the general agenda of weakening copyright law could cause devastating effects to the creative community. Mr. Newhoff pointed specifically to the ongoing work being done by the American Law Institute (ALI) on a potential Restatement of Copyright. He argued that broadly speaking, the academic world tends to take an anti-copyright law stance. The panelists agreed that this should generate concern from the creative community and that individual creators should strive to have their voices heard as this project continues.

In general, creators tend to have difficulties understanding the scope of fair use. Especially given the recent Supreme Court decision in Google v. Oracle, there is an element of amorphousness to the fair use doctrine. The panelists concurred that, without legal assistance, creators will likely continue to struggle in determining what constitutes fair use and what requires a license to use.

The event concluded with a discussion on how creators can adapt to and update with the digital age. As a threshold matter, Mr. Newhoff argued that it is hard to fit 20th-century copyright doctrine into the 21st-century landscape. Moving forward, some of the copyright laws may need to be updated (or at least monitored) to better facilitate the production of creative works. Optimistically, Ms. Marbrey noted that the “streaming takeover” is exciting for filmmakers. Although streaming can pose tricky and previously unconsidered issues surrounding copyright law, it offers a new way for creators to showcase their works and opens the door to innovative revenue streams.