# Need legal advice



## Guy Bacos (Jul 6, 2009)

About 3 years ago I had an agreement with someone to take care of licensing a collection of my pieces. I decided a few weeks ago to terminate the agreement, besides the contract was officially for 1 year and never renewed. He was fine with that.
But at the time he also made a double CD of 24 of my tracks. The CD has been available on iTune, Napster, Puretracks, Amie Street, We7, Rhapsody MP3 and more.

I only had a contract with this company for the licensing, nothing about the CD, it was a friendly agreement so we could both benefit from it from sales. This CD has been advertised for about 3 years now through a bunch of internet distributers. I never received a single cent from that. So to me it didn't make much sense to continue this relationship, therefore I emailed him again asking him to remove the double CD in relation to his advertisers and his company, and when that would be taken care of, he didn't reply, and nothing changed on the net, I sent him many more emails after that and he still never replied, my music is still be advertised like if it was his property. 

Of course I can get a lawyer for this but then why should I have to put in money for something I'm not at fault? Besides I don't think I could afford a lawyer, since we never know how far these things will last.

So if anybody has some advice or knowledge about this I'd appreciate hearing from you.

Thanks

Guy


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## Frederick Russ (Jul 6, 2009)

First off, I am not an music attorney - use whatever I say at your own risk.

Opinion: if there is nothing in the original contract to specify CD sales I believe the case may swing your way. I find it odd that you are not receiving anything from an action that you never agreed upon unless they can prove they too never received any monies for this. On the other hand, if they did receive money for the CD this would be problematic to them since it appears to be a violation: you are owed money and never received any. This may solely depend however upon the language in your contract.

So now they're being unresponsive. If you're truly wanting to pursue this, honestly I don't see any other choice than to seek the advice of a music attorney and possibly find out 1) based on careful review of the language of the contract if you have a case at all, 2) explore your options and remedies, and 3) then decide if its worth pursuing.


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## rob morsberger (Jul 6, 2009)

Hi Guy, it would not be too expensive to take the first legal step, probably a simple letter from your lawyer to the other party. At the same time your lawyer could advise you what other recourse might become necessary if the letter does not produce the desired outcome. and what sort of expense that might entail down the road. Good luck.


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## Guy Bacos (Jul 6, 2009)

Thanks Frederick and Rob, those sound like sensible advice. 

What I find disrespectful from his part is that he's not responding to any of my emails. So if he has some defense he's keeping it very secret.


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## Guy Bacos (Jul 6, 2009)

Nick Batzdorf @ Mon Jul 06 said:


> Isn't this a simple statutory license case? The rate is standard and he has to pay it whether or not he answers your emails. Usually this is through the Harry Fox Agency.
> 
> Having said that, is he selling CDs? If not, who cares?



I have no idea if he is selling CDs or not. It's just hard to believe he hasn't sold a minimum if after 3 years it's still advertised on all these distributers. So just in case I'm being exploited here I'd rather end this relationship, especially since I'm not getting anything from it, and what makes this more suspicious is that he is ignoring my emails regarding this CD.


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## Stevie (Jul 6, 2009)

Man, this really sucks. Even more, it's absolutely disrepsectful not to answer your mails. I would go for the letter from the lawyer.
Keep us posted.


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## _taylor (Jul 6, 2009)

You could try to get some legal advice here. http://forum.freeadvice.com/ 

I'm no lawyer, but maybe a cease and desist letter might let the guy know you're serious.


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## Nick Batzdorf (Jul 6, 2009)

Guy, if I'm right that this is a standard case, you can't end the relationship. That's what the statutory license is: an exception to the normal copyright laws that sets compulsory license fees for given usages. If you haven't negotiated something different, this is the rate he pays:

http://www.harryfox.com/public/licenseeRateCurrent.jsp


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## Guy Bacos (Jul 6, 2009)

Nick Batzdorf @ Mon Jul 06 said:


> Guy, if I'm right that this is a standard case, you can't end the relationship. That's what the statutory license is: an exception to the normal copyright laws that sets compulsory license fees for given usages. If you haven't negotiated something different, this is the rate he pays:
> 
> http://www.harryfox.com/public/licenseeRateCurrent.jsp



So does this mean I have no say in this? I only want him to stop selling my CD through his advertisers, the rest will be to complicated to prove.


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## Nick Batzdorf (Jul 6, 2009)

As far as I understand, yes, that's exactly what it means - but it also means he owes you some money.

I'm not an attorney, though, so you shouldn't put a lot of credence in what I say.


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## Guy Bacos (Jul 6, 2009)

So if I let Nick sell my music on the internet, and a year later I want to put a stop to this, there's nothing I can do? 

That really sucks!

This is also my older music and I'm not fond of that being out there like that.


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## Nick Batzdorf (Jul 6, 2009)

One thing I'm not 100% sure about is how this applies to music that hasn't been released. The idea is that bands cover other bands' songs all the time, and without a deal they just have to pay the statutory rate. You know - Annie Lennox doesn't have to recall all the albums she's sold because Neil Young doesn't like her version of his song. And a lot of sampling comes under the statutory license.

My suggestion is that you call the Harry Fox agency and ask them what the deal is. They'll be only too happy to go after money you're owed if there's something in it for them!


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## poseur (Jul 6, 2009)

call a lawyer.
a _good_, experienced entertainment lawyer.
pay the money & be done with it.
even given the ignominy of having hired the lawyer & paid the money,
i suspect you'll feel less victimised, finally.
just my 2 centablos.....

d


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## Nick Batzdorf (Jul 6, 2009)

I wouldn't call a lawyer unless there's money involved. This doesn't sound like that's the case, and possibly a simple call to the Harry Fox Agency will answer the question.


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## poseur (Jul 6, 2009)

Nick Batzdorf @ Mon Jul 06 said:


> I wouldn't call a lawyer unless there's money involved. This doesn't sound like that's the case, and possibly a simple call to the Harry Fox Agency will answer the question.


understood, nick.....
though, there was money involved, at some point, no?,
due to the original agreement for your ex-"partner" 
to represent the licensing of this portion of guy's music.
if a precedent vis á vis the nature of the business in this issue was once set, then.....
etc etc.

in any case,
my response wasn't meant to be absolutist in nature.....
it's simply that:
when someone posts an internet board telling us that they 
most specifically need "legal advice",
well.....
i have a tough time understanding why they don't simply seek that legal advice,
rather than requesting infos from a buncha relative strangers.
no big deal.
ime,
situations like the one that guy is describing often have many, many more
details
--- both business-wise, and personally ---
than are easily & blithely uncovered & outlined in a public post or 2 or 5.
just sayin'.....
sorry for the intrusion.

d


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## Guy Bacos (Jul 6, 2009)

I'm posting on this forum to get some general info in case someone out there has had a similar experience and would have some advice. Even a simple letter done by a lawyer is not that cheap, and it's not impossible that he may just want me to spend money... It is ridiculous of me having to put out money for this.


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## poseur (Jul 6, 2009)

Guy Bacos @ Mon Jul 06 said:


> I'm posting on this forum to get some general info in case someone out there has had a similar experience and would have some advice. Even a simple letter done by a lawyer is not that cheap, and it's not impossible that he may just want me to spend money... It is ridiculous of me having to put out money for this.


i get it; i really do.

but, i would guess that there are probably way too many details missing
--- from the relationship, from the original business arrangements, from what happened in general ---
for you to get anything other than a "feel",
here on the internet amongst near-strangers.

please don;t misunderstand me;
my advice was meant to be completely supportive,
in a way that's been "real" for me.

i have way too many stories like this, myself.
owing to that:
20 years ago, i sought & found a good, ethical, intelligent & communicative young lawyer who is still with me, to this day.
he "cut me a deal" at that time, which has since repaid him many times over,
as my legal needs grew..... and, grow they did, for better or worse.
just sayin', sir.

d

ps:
fwiw..... you may wanna delete his _name_ from your post, above.
just in case?


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## Guy Bacos (Jul 6, 2009)

poseur @ Mon Jul 06 said:


> ps:
> fwiw..... you may wanna delete his _name_ from your post, above.
> just in case?



Who's name? I was careful not to mention any names. Did I mention a name?

A friend told me I have a right to know what has been sold.

I guess it's lawyer time.


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## careyford (Jul 7, 2009)

I'd call the lawyer. And next time, call the lawyer before signing the contract. 

Richard


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## Guy Bacos (Jul 7, 2009)

I've signed plenty of contracts over the years. :cry: I must be naive.


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## poseur (Jul 7, 2009)

Guy Bacos @ Mon Jul 06 said:


> poseur @ Mon Jul 06 said:
> 
> 
> > ps:
> ...


ah, no, sorry..... i misunderstood, again.

so:
let us know how/when it proceeds, guy.

d


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## midphase (Jul 7, 2009)

The way I understand Compulsory Licenses (which is what we're really talking about here) is that:

1. They only apply to the song and NOT the recording (ie. Weird Al can release a cover of Coolio's Gangster's Paradise without permission, as long as the recording is not Coolio's original recording).

2. Mechanical Royalties apply, which means that the Royalty is paid per manufactured (not sold) CD. So if I make 1000 CD's, I have to pay the Mechanical to you whether I sell any of them or not.

"It should be noted that a mechanical license does not include the right to reproduce an already existing sound recording. That is a separate right, called a Master Use Right, which must be procured from the copyright owner of such sound recording."

So the issuer of the CD's still needs to get your permission to secure the rights to reproduce your recordings.


Ultimately it's really up to you how much of a stink you want to raise with this, my hunch is that the CD's are not selling particularly well because instrumental music (which is what I assume this is) doesn't sell well. Even soundtracks from known movies hardly recoup their manufacturing and distribution expenses.

About all that a lawyer will do on your behalf is issue a Cease & Desist order which might or might not be complied to. If the order is ignored, then you can pursue other legal avenues (at your expense) to stop further sales of the CD and request an audit of the label's books to see if any money is owed to you. This might take months, even years. Also...be prepared to be countersued! 
So it's really up to you to figure out if it's worth your time and money. Any sort of legal dispute sucks, especially ones including copyright. Just like accidents, nobody really cares about the small ones, everyone wants to go after the huge multi-million ones.


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## clarkcontrol (Jul 7, 2009)

Guy Bacos @ Tue Jul 07 said:


> My feeling is, it is probably more work for him to have the CD removed of all the advertisers, so he's just ignoring my emails.



Agreed. Probably nothing personal, just a lot of hassle for him, i'm sure.

Clark


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## Guy Bacos (Jul 7, 2009)

clarkcontrol @ Tue Jul 07 said:


> Guy Bacos @ Tue Jul 07 said:
> 
> 
> > My feeling is, it is probably more work for him to have the CD removed of all the advertisers, so he's just ignoring my emails.
> ...



Although when they need you they find the time to respond and do the work.


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## Guy Bacos (Aug 1, 2009)

I just want to bring an update to this thread as some had asked.

Rather than getting a lawyer I simply wrote to all the companies distributing my music, like Amazon, Napster, iTunes etc. They were very cooperative and the removal is in process, I'm especially happy to finally see it gone from iTunes which had worldwide distribution. Once done, I'll get a lawyer to send a letter to this asshole to make sure he doesn't get any ideas.


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## Mike Greene (Aug 2, 2009)

That sounds like your best course to me. Lawyers are expensive and even when you win, then you gotta figure out how to collect.

I'll clarify one thing on compulsory licenses, my understanding has always been that these apply only to songs that have already been commercially released. So while Pat Boone didn't need permission to release a cover of Little Richard's "Tutti Frutti," he would not have been allowed to release it _before_ Little Richard released his (unless he got permission, of course.)

One thing in your case that I noticed is that whether or not you gave him permission to include your songs on his CDs, he still did so, and for over a year, you didn't stop him. I forget the term for it (I'm not a lawyer,) but that's considered a tacit grant of permission. Kind of like how if a neighbor has his driveway partly on your property and you don't make him remove it for some number of years, that part of your property is basically now his. (Don't quote me on that one, but it's something like that.)

Anyway, your friend would still owe you royalties, of course, but at this point, my understanding is that it would be too late to deny permission to include your songs. Still, I'd do what you did and have them yanked from iTunes, Amazon, etc. That may in fact be all it takes to get his attention and start paying you (assuming the CDs are making any money.)


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## midphase (Aug 2, 2009)

"for over a year, you didn't stop him. I forget the term for it (I'm not a lawyer,) but that's considered a tacit grant of permission. Kind of like how if a neighbor has his driveway partly on your property and you don't make him remove it for some number of years, that part of your property is basically now his. (Don't quote me on that one, but it's something like that.) "


Yup, great point Mike, I had a similar issue many years ago. That's exactly what my attorney said, if enough time has passed, the defendant will claim that you knew all along and simply didn't do anything to stop it...hence that implies that you were "ok" with it.

Regarding the driveway, in L.A. Country it's 5 years. If your neighbor builds something over your property line and you let him keep it there for over 5 years, it can't be removed. You still own the property, but you can't ask your neighbor to get rid of the driveway.


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## Guy Bacos (Aug 2, 2009)

I'm not sure where your coming from, what's this about more than a year? What happened was about 3 months ago, I decided to put an end to this relationship including our non contractual agreement about him selling my CDs. If I have no rights in this than something is seriously wrong here. Anyway, Itune told me they would contact him and give him 5 days to respond, he never did. I think there is also common sense taken into account in the laws, not just "this is the law!"

There are also a few areas where he was not in the legality technically.


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## Adelmo (Aug 2, 2009)

you need to see if in the contract (it all depends what in the writing) you gave him your master recording and any other way of distribution your music incl mechanical, because he printed CD's he would ned to pay you those as well!! if you didn't then he cant make a CD and sell it with out your permission, if he doesn't replay to your emails or phone calls, one more approach it take it to a small claim court, you file a case, i think you would need to put in a sum based on what you would think he needs to pay you or not ( putting a claim will coast you a little but they will add this to the claim) and he will them need to defend him self or deny the claim, most people settle before it will get to court anyway.
if you would like, since i know contracts very well i can take a look, PM and i will msg you my email


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## Guy Bacos (Aug 2, 2009)

Adelmo @ Sun Aug 02 said:


> because he printed CD's he would ned to pay you those as well!!



That's true, good point.


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## cc64 (Aug 2, 2009)

Hi Guy,

since you're in Quebec i believe, you should contact SODRAC about this.

HTH

Claude


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