Contract Law

This is not legal advice. Leave audio feedback at (512) 686-6329.

So, it seems that my snippets go back further than last semester. I took Contract Law my first semester in law school (as most people do). Anyway, as I recently mentioned over at OSP, there may be a book coming. I want to get as much of this out there so people can help piece together what should be in the book. Obviously, some of these need work, but the community isn't going to be able to help put the book together unless they know what has already been written. So, just like the last post, this is one of those as-is posts. I hope you can gain something from it.

This is the first of a two-part series. The other post will be on the sale of goods, which will apply to merchandise sales. Today will focus on contracts for services. A performance, a "gig", is a service.

Let me first say that Tort Law and Constitutional Law have been my best grades in law school, so if anyone has suggestions to improve this article, I am open to suggestions! Let me also say that that should be a warning to you if you are attempting to make this legal advice. This is not legal advice.

Contracts are generally a matter of state law, but the US Constitution does address contracts in Article 1, §10. "No State shall...pass any...Law impairing the Obligation of Contracts." From the Constitutional side of things, there are other property rights, but that's not particularly important.
From the copyright side of things, note that you can sign away pretty much everything in the US context.

Many people think a contract must be in writing for it to be enforceable. While there are exceptions (there always are!), ORAL CONTRACTS FOR SERVICES ARE ENFORCEABLE.

RESOURCES

http://en.wikipedia.org/wiki/Contract

CASES

Righthaven v. Democratic Underground

OTHER PODCASTS

A couple pages worth at The Legal Talk Network (none deal directly with gigs or copyright)

Current Issues: Week 5 - Product Development & Private-Public Partnerships (PPP)

This is not legal advice. Leave audio feedback at (512) 686-6329.

Last semester I took a course called Current Issues in International IP. I thought perhaps I'd clean up some of these posts over the course of the summer, but with the summer drawing to a close, I figured I'd either delete the titles or release what I had written as is. This is one of those as-is posts. I hope you can gain something from it.

Technically, this week we are primarily talking about patents in the Current Issues course. Specifically, we read "A Typology of Intellectual Property Management for Public Health Innovation and Access: Design Considerations for Policymakers" by Antony Taubman. I think the private-public partnerships are worth exploring in music as well, and indeed the paper passingly mentions copyright a few times.

Probably the most obvious Private-Public Partnership (PPP) in music is that of music education. People will quibble whether in the US we really have much "public" in music education, at least from a financial point of view. Let me first say, that despite my parents both being music educators (one public, one private), I think math and science education is vastly more important than arts education (that said, studies have shown music improves math skills). Humans innately express themselves. Humans do not innately understand differential equations or the Heisenberg principle. Of course, this week is not about education policy, we already had that discussion and will again when I post my mid-term paper on the subject.

There are, of course, other PPPs in music and some of them are subtle. For example, many arts organizations are 501(c)(3)s and while this is not direct financial stimulus, the tax incentives certainly help promote the arts. Charitable organizations are a particularly interesting application of the "market economy." While the market apparently prefers Justin Bieber (who was #1 on Billboard when I started writing this post), the government allows a separate (not secondary) market for charitable arts organizations.

Of course, the government also "competes" in this market with the various military bands, but charities, such as the Netizen Empowerment Federation, fulfill roles in the US that governments provide in other countries, such as education and arts. I am not an economist and thus I am not going to speak about the market aspects, specifically.

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9. Monkey Art and Copyright: Intellectual Property Rights in Works by Nonhuman Creators

Koko: A Talking Gorilla

This is not legal advice. Leave audio feedback at (512) 686-6329. This show was recorded and edited using GNU/Linux.

Expected Audience: anyone curious about animals, AI, extraterrestrials and copyright

This week, Doug speaks to Neal Smith, author of "Monkey Art and Copyright: Intellectual Property Rights in Works by Nonhuman Creators."















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Per usual, the sparse show notes are after the break.

8. Alex Owczarczak, Student Judicial Intern Clerk at U.S. Court of Appeals for the Federal Circuit

The Federal Circuit

This is not legal advice. Leave audio feedback at (512) 686-6329. This show was recorded and edited using GNU/Linux.

Expected Audience: law students and attorneys interested in decision tree analysis


First off, on top of our usual disclaimer, nothing Alex says should be taken as a statement by the U.S. government or the U.S. Court of Appeals.








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Interview notes after the break.

7. NEF Board Member Josiah Barbour

Listen and find out how Tottenham fits in to Music Manumit

This is not legal advice. Leave audio feedback at (512) 686-6329. This show was recorded and edited using GNU/Linux.

Expected Audience: 
people interested in patent policy and those interest in the Netizen Empowerment Federation

Welcome back to the Music Manumit Lawcast! It's been a while since we've put out a podcast. We should be putting out one a week this summer. They'll be shorter than last summer, and it'll just be Doug and a guest. Also, Brian should be coming out with some shows on trademark law.




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Josh and Doug cover a lot of ground. Expect a more focused show next time, when Doug speaks with Alex Owczarczak.

Show notes after the break

Personal Income Tax for Creative Common Musicians

This is not legal advice. Leave audio feedback at (512) 686-6329.

I have a few thoughts on Doug's post about personal income tax consequences for musicians. I think Doug was a bit pessimistic in his interpretation of when musicians are engaged in a separate trade or business, the business of being a musician. A taxpayer is engaged in a trade or business when they are regularly involved with an activity for the purpose of generating profit. See Groetzinger if you're interested in finding out more about what constitutes a trade or business. (Professional gambling can as long as you do it regularly and mean to make a profit.)

Doug had some concerns that musicians who release under creative commons may not qualify as engaging in a separate trade or business because they do not profit from the distribution of their music recordings. I would still argue that most musicians would still be engaged in a trade or business despite not charging for their music. I see musicians as offering two categories of goods and services: recorded music and live performance services. I think most musicians who release music under creative commons are giving away their recorded music in order to promote their performance services. Releasing music under creative commons is like a restaurant that gives away free samples. While the restaurant is not trying to make money on those particular samples it is attempting to use those samples to promote its profitable services. The fact that a musician chooses to give away their music should not disqualify him from being treated as engaging in a trade or business for tax purposes.

Musicians still need to meet the regularity and profit motive requirements in order to be treated as being engaged in a trade or business. Doug and I agreed that this is where some musicians might have trouble qualifying as being engaged in a trade or business. An important point to note is that taxpayers can be involved in more than one trade or business so having a day job does not interfere with being considered a musician by trade. However, how much time one spends doing music is certainly relevant. Sporadic practice and infrequent performances might keep some musicians from qualifying as being engaged in a trade or business. I guess the main difference between my view and Doug's view on the subject is on what exactly constitutes a profit motive. I am fairly optimistic, in Groetzinger the court found a professional gambler to be engaged in a trade or business. While many musicians might not profit from their music, I'm pretty sure the probability of making money as a gambler is somewhat lower.

I am generally optimistic that most regular musicians are engaged in a trade or business as long as they have some hope of making money on their music one day.

Trans-Pacific Partnership and America's Right to Know

This is not legal advice. Leave audio feedback at (512) 686-6329.

Ah, SOPA. It's back. At least for this post. If you want to hear my thoughts on SOPA when it was fresh, you can listen at Cyberunions.org. Unfortunately, the Trans-Pacific Partnership is still going strong and it has the possibility to be the new SOPA. We don't know if it will be the new SOPA, but we don't know that it won't.

Below is a full paper I turned in on the TPP.