Copy Wronged – Henry Sauter

1. Paying a Lawyer/Retainer
There are three common ways to pay a lawyer. These are usually referred to as fee agreements. Lawyers usually charge 1) by the hour, 2) a flat fee or 3) a contingency fee. We will not discuss the third option because it is usually used in only personal injury cases.
When a lawyer charges by the hour, he keeps track of the work he does for a client in 6- minute increments. For example, if he does 36 minutes of work (6 – six minute increments) and his hourly fee is $200 an hour, the client is billed $120.

In recent years, more clients have requested alternate billing arrangements such as a flat fee because it lets them know up front how much money they have to pay. A flat fee is where an attorney quotes a price for handling a particular matter. An example of this would be a flat fee for registering a copyright or trademark.
A related concept that is important to understand is the retainer. A retainer usually refers to an upfront deposit of money necessary to get the lawyer working. The lawyer then bills against the money on deposit and keeps the client informed of the bills through monthly statements.

A retainer can also refer to a flat monthly charge to perform recurring work such as searching for copyright infringement and then sending cease and desist letters.

2. Licensing for sampling
In order to understand how to go about licensing a sample, it is important to understand that an author can have both a copyright in a musical work and a separate copyright in a sound recording.
Licensing a sample requires figuring out who owns the copyright in the sound recording and then negotiating a price for using it. The owner of the sound recording could be the author of the song, a band or even a record label. Keep in mind, that the owner does not have to allow you to use any portion of their sound recording and can ask for ridiculously high fees to use the sample.

A strategy that some artists have used, is to record a cover and sample the cover. Rather than license the sound recording, one licenses the musical work. The price for licensing a musical work can still be negotiated but has a maximum price under the law and you don’t need an artist’s permission (although you have to pay the fee.)

If you listen to Jay-Z’s song Young Forever, it sounds like he re-recorded the song by Alphaville instead of sampling their version. By using this strategy, he didn’t have to get permission from the owner, he just had to pay the fee that is in the Copyright Act.

Henry Sauter is an attorney who focuses his practice on intellectual property issues affecting artists and musicians. If you have any questions that you would like to see answered in this column, feel free to email questions to Henry at thebizexclusives@gmail.com.

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