Terms of Art
Advances – A payment that is offered prior to the commencement of a creative service or project. Advances can be either refundable or non-refundable. In the context of the music business, advances refer to something in the nature of a loan offered to the artist which is basically an investment being made by the entity offering the advance. In such a context, advances can be recoupable i.e recoverable from the income or royalties made by the artist (see recoupment).
Agent – A person who is authorized or permitted to act on behalf of another person. In the context of the creative industries, an agent often refers to a company or individual who represents an individual’s interests in commercial and business transactions. The scope of agents differs from one context to another and it’s always best to clarify what the agent promises to do for you and for how much.
Assignment – The transfer (partly or wholly) of copyright ownership and its related rights from one party to the other.
Author and Authorship – An author is the actual creator of a copyrightable work. As the legal author of a creative work or intellectual property, you can claim copyright as well as neighbouring rights known as moral rights. Only a legal author of a work can claim copyright ownership, and in some situations (see work-for-hire), you will not be considered a legal author despite being the original creator of the art or creative work in question.
Blanket licenses – Blanket licenses refer to the kind of licenses which allow the use of multiple compositions that may be covered under specific agreements offered by a performing rights organization (see performing rights organization or PRO). Typically, these licenses do not limit usage and are granted in exchange for a one-time payment. Blanket licenses are often issued by PROs (eg. like ASCAP, BMI, IPRS, PRS) to licensees (restaurants, bars, clubs, etc.) who might want to use the entire catalog of a PRO.
Breach – Breaking or violating the terms of a contract. In some contexts material breach which is essentially the violation of a fundamentally integral clause or component of a contract can become grounds for the immediate termination of the obligations of the contract in question.
Coercion – Forced to perform something against one’s will or where one’s consent has not been taken or has not been given voluntarily. (see consent)
Confidentiality – A term generally found in contracts to ensure parties maintain and keep all information secure and private. A confidentiality clause or agreement can sometimes specify the period of time for which such information must be kept private and undisclosed, even after the termination of the agreement.
Consideration – A sum of money or something of value exchanged in order to execute a contract. (Often referred to as compensation, fee or a payment).
Consent – Voluntarily agreeing to do something or undertake a responsibility. Some individuals including minors and people may be considered incapacitated cannot grant legally valid consent. This is why they would need a guardian or representative to sign off on their behalf. Consent is also said to be invalid if it is obtained by force (see coercion).
Contract – An oral or written legal agreement entered into by two parties where they agree to perform a duty or render a set of services or obligations, for a sum of money i.e. consideration. (see consideration)
Controlled Composition Clause – The controlled composition clause in a recording contract places a limit on how much the label is required to pay for songs in which the artist is both the songwriter and the performer. The record company and publisher may agree on a reduced rate (say 75% of the statutory rate) for the song written by the artist, and limit the total mechanical royalties payable.
Copyright – An exclusive and limited right granted to the author/creator of literary, artistic, dramatic, and musical work, as well as films and sound recordings. A copyright carries a limited monopoly and on the expiration of its term becomes copyright free by entering into what is known as the public domain.
Copyright Society – A body that issues and grants licenses, collects and distributes royalties on behalf of copyright owners.
Creative Commons – A less restrictive, alternative licensing regime to copyright. A CC license allows creators to decide which rights they want to reserve and which they want to waive. You can read more about them by heading to https://creativecommons.org
Derivative Work – A Work that is created based on a pre-existing copyright protected work. Example: The Harry Potter Film franchise is a derivative work based on the books written by JK Rowling. Derivative works do not have to be in the same format or medium as the original copyrighted work, and the right to make derivative works typically rests with the copyright holder.
Damages – A compensation awarded by a court or judicial body. It is usually in the form of money.
EP – An EP or extended play refers to a compilation of tracks that often occupies a length and context between being a standard album and a single.
EPK – Electronic press kit which is a digital version of an artist’s publicity material and tech or production requirements. Typically they include the artist’s biography, pictures, showreel and news updates or links.
Exclusivity – A competitive business strategy to prevent or exclude others from access to something or someone. Example: A band signs an exclusivity clause with a venue which prevents them from playing at any other venue in a particular geographic area for a stipulated period of time. OR exclusivity is requested by a brand desirous of licensing a piece of artwork or a track for their brand campaign, thereby making it impossible for the artwork or track in question to be used for any other purpose (commercial or non-commercial). The opposite of exclusivity is non-exclusivity.
Ex parte – An order passed by the court in the absence of one party.
Fair Dealing – An exception to copyright law followed in India, United Kingdom, etc. News reporting, research, commentary are examples of fair dealing.
Fair Use – Exception to copyright law that originated from the United States and is also followed in Israel and South Korea. Also referred to as the four-factor test.
Force Majeure – An act beyond the control of humans. Example: Act of God like an earthquake or pandemic. Force Majeure can allow a contract’s obligations to be suspended for the duration of the event, without actually terminating the contract itself.
Fraud – Deceiving a person for personal gain.
Indemnity – Safeguard against legal or financial responsibility.
Infringement – Unlawful use of any IPR.
Intangible – Something which cannot be touched or felt.
Intangible Cultural Heritage – Traditional practices, rituals, and expressions associated with a community. This is also a kind of protection that is granted to creative and cultural products (or practices) resulting from traditional and folk practices that do not receive protection under intellectual property rights regimes like copyright and patent laws.
Intellectual property – Property that is different from ‘real’ property and is the result of the application of the mind or human imagination. It typically refers to creative and scientific innovation.
IPR – Intellectual Property Rights such as Copyright, Trademark, and Patents that are used to protect intellectual property.
Joint Authorship/Ownership – When two or more people create or own a copyrightable work, they have joint authorship or ownership, respectively.
Jurisdiction – The country, region or issue over which a court or law enforcement body has power in.
Legal representative – A person who is allowed to legally represent another’s affairs. Example: Lawyer, agents, or heirs.
Liability – Legal responsibility.
License – Limited transfer of a copyright (or any other right) for a pre-determined period of time. A license can also specify other conditions of usage, the nature of exclusivity, as well as the territorial limitations for the usage of the licensed work in question.
Manager – A manager is the person responsible for developing the artists’ profile and career. The manager advises the artist on all business-related decisions and promotional strategies. The exact scope of the manager’s duties depends on the discussions between the manager and artist, and can be captured in a manger contract.
Masters/ Master Recording – A master is the term used in music business to refer to a sound recording fixed in tangible form and from which all subsequent copies of the sound recording are made.
Mechanical License – A Mechanical License grants to the user the rights to reproduce and distribute copyrighted musical compositions on CDs, records, tapes, ringtones, permanent digital downloads (DPDs), interactive streams, and other digital configurations supporting various business models.
Misrepresentation – Giving false or misleading information to deceive someone.
Moral Rights – The right to prevent one’s work from disparagement, mutilation, and defamation.
MoU – Memorandum of Understanding is an agreement or document which expresses the common consensus of parties.
NDA – Non-Disclosure Agreement to maintain confidentiality of information.
Ownership – A person who owns a copyright. All owners are not necessarily authors of a copyrighted work.
Portfolio Rights – A right that allows the artist to include the work, project and the client’s name in their artist portfolio which may be accessible for public or private viewing.
PPD – Published Price to Dealers, or PPD, is the wholesale unit price of a sound recording.
Public Domain – Work that is free for use by the public. This occurs either after the expiry of the copyright term or if the author releases the work free for public access and use.
Publisher – A person who ensures songwriters and composers (for music) and authors (of books) are paid royalties.
Record Label – Record labels are companies or entities that manufacture, distribute, and promote the sound recordings of musicians and artists on their roster.
Recoupment – Recoupment can very simply be understood as the concept of recovery. The concept of recoupment allows the record label to apply artist royalties against the advance until the royalties equal or “recoup” i.e recover the amount of the advance. Recoupment can also occur in publishing agreements in which a songwriter receives a recoupable advance.
Representation & Warranties – An important clause in contracts where parties promise and warrant that their work is original.
Right of First Offer (ROFO) – A contractual obligation that requires a party to make an offer to the other party before offering it to the public.
Right of First Refusal (ROFR) – A contractual obligation that allows a party to make an offer to the public only after the other party refuses the offer.
Royalty – A percentage or sum paid to the author of copyrightable work for the sale of every copy of the work. Royalties can be of several types depending on the revenue stream that is being monetized.
Secondary Liability – Indirect liability or accountability of a party. Example: Internet Service Providers (ISPs) could be subject to secondary liability if they do not remove infringing content from the host website.
Sound Exchange – SoundExchange collects and distributes digital performance royalties from the use of sound recordings on behalf of recording artists and master rights owners (typically the record label). SoundExchange collects royalties from non-interactive streaming services like online radio (as opposed to interactive streaming services like, say, Spotify).
Statutory Mechanical Royalty Rate – A mechanical royalty rate that is specified by the copyright board or specific authority in the country.
Suit – A legal action filed by one party to ensure the other party fulfills their duties and obligations.
Supervisor – A supervisor or music supervisor is a qualified professional who oversees all music related aspects of film, television, advertising, video games and other existing or emerging visual media platforms as required. Supervisors are your go-to person for making synchronization licenses happen.
Synchronization (Sync) Licensing – Synchronization licenses refer to the licenses that are needed for the “synchronizing” of a musical work with a visual work. In simple terms, these are the kinds of licensing deals that take place when a sound recording embodying a musical work is synched or used in conjunction with an audio-visual work. For example, songs that become part of an OTT series.
Term – Time period of a contract. It could also refer to the copyright term i.e. life of the author + 60 years (in India) or, clauses in a contract.
Termination – A clause on how to end a contract.
Territory – The geographically defined market that the agreement or deal applies to.
Traditional Knowledge – Knowledge belonging to a community that has been passed on from one generation to another.
Waiver – Surrender of one’s rights.
Working for Hire – A situation in which someone is engaged or commissioned to render their services. Working for hire can include instances where artists are specifically hired by clients or other artists to carry out a specific project or part of the project. For example, a sessions musician is typically working for hire or an illustrator may be asked to work for hire for a writer, to help them produce cover art for their book. The catch with working for hire, is that despite being a creator of a work, you will not be considered its legal author.