This multi-phased project will help to build the infrastructure for regional hubs representing artists and arts organizations in every area of Canada and will include an Indigenous Advisory to address the unique challenges that Indigenous artists and arts organizations face every day, The National Network of Legal Clinics for the Arts is currently working to establish the regional committees of arts service organizations that will define the shape of these clinics in collaboration with committed lawyers in their area.

There is going to be a Virtual Forum on May 11, 12, 13, 2021 where these regional committees will gather to share knowledge and lay out plans for the evolution of this important and necessary project. ALAS will share more information on the Virtual Forum as it becomes available. For more information on the National Network project, visit https://www.legalclinicsforthearts.ca/.

The post National Network Update appeared first on ALAC.

The Origin of “C.R.E.A.T.I.N.G.”

The word checklist “C.R.E.A.T.I.N.G.” spontaneously sprang from a preparatory conference call prior to a seminar about licensing entitled “Playing Nice in the Sandbox”, held at the Duke of York Pub in Toronto several years ago. The event was an ALAS legal educational seminar about licensing that featured myself speaking about music licensing, Marian Hebb speaking about licensing in the book publishing field, Tony Duarte discussing licensing in relation to film law and Emmanuel Evdemon speaking about licensing in relation to video games.

I had come up with a made-up word that served as a checklist that used almost the same letters that now form the acronym CREATING. At the time, the word was a little jumbled and garbled, probably something closer to G.-R.-E.-A.-A.-T.-T.-I.-N.-C. I shared it with the other panelists. Tony asked what I meant. I said it was a word that I made up that signifies and outlines key points that should be considered before entering into a licence agreement. It was coined by me to serve as a short checklist.

Marian then responded by saying “Oh, you mean “C.-R.-E.-A.-T.-I.-N.-G.”. All four of us agreed. That’s how G.-R.-E.-A.-A.-T.-T.-I.-N.-C. became the word checklist C.R.E.A.T.I.N.G. and acronym CREATING.*

What does “C.R.E.A.T.I.N.G.” mean in relation to creators’ rights agreements?

1) The letter C stands for compensation for a grant of rights, which is usually a licence but may be an outright sale. (See paragraph 12 below on grant of rights.) Under a creator’s rights agreement with a producer, developer or publisher, this can be anything from nominal consideration of a dollar, credit or, more typically, monetary compensation in the form of a flat fee, a royalty percentage or share of net or gross receipts, or a combination of some or all of these forms of compensation, in return for the right to use or “exploit” the rights that are licensed or purchased. Further fees may be paid for repeat uses (see end of paragraph 4 below on residuals) and royalty percentages may escalate based on the number of sales.

2) The letter C also stands for copyright in a work or performance and for credit or attribution to an author or performer. It’s usually best for the creator to keep their copyright and to have a copyright notice in their own name on a publication or a production as well as a credit as author or performer, since giving up copyright takes away the creator’s right to authorize or, except as may be specified in a rights agreement, to control further uses of their work. But, even if a creator grants all of their rights of copyright to another person, likely to be a producer, developer or publisher, the creator retains “moral rights”, which include attribution rights. Waiving moral rights may deprive the creator of their right to a credit unless specifically provided for in the rights agreement. So a creator should always carefully consider any request either to transfer their copyright or to waive their moral rights.

3) The letter R stands for reserved rights. Often some rights in a work or performance are retained or “reserved” by the creator. For example, a literary agent will almost always reserve a book author’s translation, film, dramatization and interactive digital property rights in a novel or other work. An author representing themself to a book publisher should do so too in appropriate circumstances and reserve all rights not specifically granted to the publisher. A composer may reserve all rights to their music other than the right intended for immediate use by the licensee or purchaser. For example, licensing a piece of music for use in a single documentary film would not entitle the licensee to use the music in a video game, a web series or traditional television series.

4) The letter R also stands for reversion rights, sometimes referred to as revocation rights. Typical grounds for a creator wanting to revoke or revert rights and terminate an agreement entirely include failure to publish or produce a work, non-payment of an advance against royalties or of earned royalties, failure to provide an accounting, failure to allow an audit or failure to meet some other very important term of the agreement. Whether a reason for revoking or reverting all or certain rights in an agreement is sufficient is often disputed, especially if not actually specified in the agreement. For example, a rights agreement, whether a licence or sale of rights, may say that the author is entitled to revert film rights if a film production has not been completed within a specified number of years following the producer’s acquisition of the film rights to the author’s novel. Or, a book or video game publishing licence may say that the author may revert all rights to a work if it is not published within a specified time following the agreed publication date, or may revert all translation or version rights to their work, or perhaps just rights for a particular language or version, if not translated or versioned and published within a specified number of years of first publication of the work in English (for example, a Japanese translation or console version of a game based on their novel if no such translation or version of the game is published within, say, three years of first English-language publication) or, similarly, a licence may say that the author is entitled to revert all publication rights for any territory where copies of their work have not been released or distributed after a specified time. Failure to make payments is frequently specified as a circumstance permitting a creator to revoke or revert all rights and terminate the agreement – but likely to be included only if requested by the creator! Before entering a rights agreement, a creator should give careful consideration to specifying circumstances in which they might wish to revoke or revert certain rights or to terminate the agreement and reclaim all rights.

And the letter R may stand for residuals – a term that should not be forgotten if a creator is entitled to further payments as compensation for repeat performances or other uses.

5) The letter E stands for exclusive. Exclusivity means that the creator cannot license elsewhere the same rights that they have already granted under another rights agreement. Not all agreements are granted on an exclusive basis. Many are non-exclusive licences. For example, use of pre-existing master sound recordings and pre-existing music used in synchronization with visual images in film and television productions are typically non-exclusive. So are licences to quote excerpts from a book in other publications. If non-exclusive, the same rights can be granted to many licensees. On the other hand, for example, a choir or a football club will likely require exclusive use of a song composed for it, or an advertiser may request exclusive use of a few bars from pre-existing music or even of an entire work for advertising a particular product or class of products. However, for example, a car manufacturer may just want to be the only car manufacturer permitted to use a song, but is unconcerned if the song is used in a film. Whether a grant is exclusive or non-exclusive is a key consideration when a creator is looking at entering a licence agreement and usually greatly affects the amount of compensation to the creator.

6) The letter A stands for accounting. Since the compensation set out in many rights agreements is based on a royalty or share of net or gross receipts, the accounting clause is very important. It typically specifies what and when accounting statements are to be provided to the creator by the producer, publisher or other distributor, including how royalties or receipts are calculated, what period of time is covered, when payment will be made, and other relevant details.

7) The letter A also stands for audit. An audit refers to the right of the creator granting rights and receiving royalties or other payments to verify the accounting statements provided by the licensee or the purchaser by an inspection or examination of its relevant books and records, usually by a professional accountant and subject to other conditions. The cost of the audit is often contingent upon whether or not an error in accounting is discovered during the audit. This is another very important term of a rights agreement. (Typically, the matters in this paragraph 7 and in paragraph 6 above appear in the same clause of a licence or purchase agreement, but they are conceptually different.)

8) The letter T stands for the term of a licence or any other rights agreement including an option to purchase certain rights. The word “term” in this context is the duration of the rights agreement, typically lasting for a specified number of years, but sometimes as long as the rights are being used by a licensee or for the duration of copyright, and so an agreement may outlive the author of a work. The length of the term, like many of the other points highlighted in this checklist, is often negotiable.

9) The letter T also stands for territory, meaning the country or area where the licence is applicable and the licensed rights may be used. For example, a licence for publication of a work or for a performance could be on a Canada-only basis, for North America or for the entire world, or even the universe, depending on its type and scope.

10) The letter I stands for irrevocable. Some rights agreements, whether a licence or outright sale of rights, are entered into on an irrevocable basis, meaning the grantor of the rights cannot revoke or take them back. For example, master use licences for master sound recordings and synchronization licences for music in a film are customarily granted on an irrevocable basis, and that is a fundamental condition of such agreements. If a grant of rights is described as “irrevocable”, it may be appropriate for the agreement to also specify that the creator is entitled to sue for damages for breach of the terms of the agreement. Also, even a grant of rights described as “irrevocable” may be subject to “revocation” and may be reverted by the creator in specified circumstances, for example, failure to produce or publish a work. (See paragraph 4 above on reversion rights.)

11) The letter N stands for net. A creator should always view the word “net” in a rights agreement with intense scrutiny! Net of what? Sometimes a producer, publisher, or distributor is permitted to deduct so many expenses from its gross revenues that there is very little if anything left on which to base the creator’s royalty or share of profits.

12) The letter G is last, but is certainly not the least letter in the word checklist C.R.E.A.T.I.N.G. It stands for the grant of rights, which should be very carefully scrutinized by a creator. A grant may authorize anything from a narrow temporary non-exclusive use to a very broad long-term or permanent exclusive use. Under a licence, which is more akin to a rental than a sale of rights, the creator always retains a right to their property (though unable to exercise any right of copyright in it until expiry or other termination of an exclusive licence of all rights). An outright sale or other complete transfer of rights is often referred to as an “assignment” of rights. From a creator’s perspective, licensing is usually preferable to an assignment, and most rights agreements can be drafted as licences. A grant of rights can include a great many things including, broadly, the form, technology, manner of use, purpose, media and languages for which rights are granted and may be used. A grant of rights may capture future technology or formats for use of the rights granted, or attempt to capture rights unknown or even unimagined at the time of the agreement. The grant of rights can also specify restrictions on the grant. For example, if the grant is for the use of music in a film, is it restricted to use in that film only? Can the music be used in the trailers and advertising, marketing, or other promotional material for the film? Can that music be used in a sequel to the film or a video game based on the film? Can it be licensed by the creator to a different producer or publisher for a video game related or unrelated to the film? Such questions and many more are key issues that are part of negotiations regarding the scope of grants of rights in licences and other rights agreements.

The letters C.-R.-E.-A.-T.-I.-N.-G. have proven to be a very useful mini-checklist that I have used when teaching and working with creators and that any creator can use when considering the basics of what should be included when negotiating and entering into a licence or other agreement granting rights. The word checklist C.R.E.A.T.I.N.G. or acronym CREATING is easily remembered and can be applied to any licence or other rights agreement. It often is relevant and valuable when analyzing and negotiating the terms of almost any such agreement. It should be noted that terms, for example, “net receipts”, “net revenue”, “net profits” or “reversion” or “termination” rights, amongst the many terms used frequently in rights agreements, may be defined specifically in a particular agreement, though sometimes buried in a long paragraph or in a schedule to the agreement. All definitions should be reviewed carefully as they can substantially affect the interpretation of the agreement and the extent of the rights granted in the agreement. And, however clearly this article may explain the concepts represented by the letters forming this acronym, it is not, nor is it intended to be, an exhaustive discussion of all points that a creator needs to consider before signing a rights agreement. Ideally, in any given specific legal situation, legal advice should be obtained from a lawyer who practises law in the field in which the creator works.

Copyright © Paul Sanderson 2020

Paul Sanderson thanks Emmanuel Evdemon, Tony Duarte, Ken Thompson and Marian Hebb for their contributions and suggestions to this article and to Marian for her editorial assistance.

* Marian also coined both the names ALAS, which is a short form and acronym for Artists’ Legal Advice Services, operating since 1986 in Toronto and providing legal information, education and summary legal advice to all artists of all disciplines on a pro bono basis, and ALAC, which is a short form and acronym for Artists and Lawyers for the Advancement of Creativity, the federally incorporated not-for-profit corporation which co-ordinates ALAS.

ARTISTS’ LEGAL ADVICE SERVICES invites creators to use the acronym CREATING
as a reminder that the letters C.-R.-E.-A.-T.-I.-N.-G. form a useful checklist:

C stands for copyright, compensation and credit
R for reserved rights, revoke and revert – and missing a residual will hurt!
E is for exclusive, but non-exclusive is swell
A for accounting, and audit as well
T is for term, and territory too
I for irrevocable – do be careful of that!
N is for net, which could be a bad trap! 
G is for the grant of rights, don’t forget – since this checklist has no point without it!

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The report recognized that artists in all disciplines face legal issues related to the distribution, creation and use of artistic and cultural works, including new and evolving issues due to the increasing digitization of the arts landscape and, with the rise of COVID-19, other pressing challenges have arisen, such as sudden contract cancellations that impact artists working in all media. Unfortunately, however, most artists cannot afford legal services, nor do they have access to lawyers with expertise or experience in the arts sector.

To remedy this widespread lack of accessible and affordable legal services and the limitations of the legal services currently available to artists and arts organizations on a pro bono basis, the report proposes a national network of legal clinics for the arts. This initiative would:

• facilitate collaboration among existing legal arts clinics to identify and propose solutions to nationwide legal issues
• allow existing clinics to improve their jurisdiction-specific content and services
• foster collaboration among clinics to deliver innovative legal information and support nationally
• cultivate and leverage existing relationships to develop new legal arts clinics in regions currently unserved

The needs assessment will help direct where ALAS will focus on developing resources and educational sessions for artists in Ontario. ALAS will also continue to work with our collaborators on establishing a true national network of legal clinics for the arts across Canada.

ALO’s press release on the report is available here, and the report is available in English and in French. It includes a description of the methodology behind the report, the complete results of the survey, and a fuller account of the proposed model of the national network of legal clinics for the arts.

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We stand in solidarity with Black, Indigenous and all racialized communities in the fight to end racial injustice. Racism persists in Canada today, taking the lives of Black people, Indigenous people and racialized people, and systemic inequity marginalizes a great many others across Canada. We acknowledge racism in Canada persists through policies and practices entrenched in Canada’s legal system and institutions that reflect and reinforce prejudice, stereotyping and discrimination against persons from Canada’s Black, Indigenous and all other racialized communities and results in unequal access to and unequal benefits under the law.

ALAS commits to seek guidance and collaborative input from leaders and experts and especially from our artist stakeholders on how we can help. Amongst other things, ALAS wants to find the best ways we can to help amplify the voices of Black, Indigenous and other racialized artists, creators and cultural workers in Ontario and Canada. Internally, ALAS also commits to explore how we can improve diversity and inclusion and provide anti-racist education within our own organization.

ALAS will work with our community to assess the best ways that we can help to combat systemic inequity and prejudice. We will update our website and social media as plans develop. We will use our social media as a forum to share resources and discuss legal challenges faced by the Black, Indigenous and other racialized creative communities in Ontario, and we encourage you to join the conversation. We are eager for the Ontario creative community to get involved and collaborate with us. Please don’t hesitate to contact us.

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The post COVID Economic Support Benefits appeared first on ALAC.

CERB would provide up to $2,000 per month for up to four months. CERB is intended to be available to workers facing an income loss as a result of the COVID-19 pandemic, including those who are still employed but whose pay is disrupted by COVID-19. The intended beneficiaries of CERB include:

• workers who have lost their job, are sick, quarantined, or taking care of someone who is sick with COVID-19;
• working parents who are forced to stay at home due to daycare/school closures or to take care of someone sick with COVID-19;
• contract works and self-employed workers who are otherwise ineligible for employment insurance (EI), such as creators; and
• Canadians who are already receiving EI but whose benefits are ending before October 3, 2020.

CERB benefits are intended to be available within 10 days of application, and will be available for the period from March 15 through October 3.

The Government has proposed legislation for CERB. More information will follow as updates become available. For general inquiries, the following lines are available:Phone: Phone: 613-369-3710
Fax: 613-369-4065
TTY: 613-369-3230
E-mail: fin.financepublic-financepublique.fin@canada.ca

The post Federal Government Proposes Canada Emergency Response Benefit (CERB) appeared first on ALAC.

The post Canadian Musicians – Survey on the Impact of COVID-19 – Deadline March 27 appeared first on ALAC.

This benefit is planned to be available for:

1. Workers, including the self-employed, who are quarantined or sick with COVID-19 but do not qualify for EI sickness benefits;
2. Workers, including the self-employed, who are taking care of a family member who is sick with COVID-19, such as an elderly parent, but do not qualify for EI sickness benefits; and
3. Parents with children who require care or supervision due to school or daycare closures, and are unable to earn employment income, irrespective of whether they qualify for EI or not.

The Canadian Government has specifically indicated that cultural sector workers will be eligible for this benefit.

While awaiting further details, the Federal Government is advising workers (including cultural works) to keep records and documentation specifying the nature and amounts of losses (including opportunity losses) resulting from any disruptions caused by the COVID-19 pandemic. The Canada Council fo the Arts has also recommended that cultural workers document losses specifically relating to grant-related activities.

The benefit program is promised to be in effect in April 2020 and to be accessed by an attestation form to be online at CRA’s “My Account” portal, via the Service Canada portal, or over a phone number to be dedicated to this benefit.  Details are to follow at the government website linked below:

https://www.canada.ca/en/department-finance/news/2020/03/canadas-covid-19-economic-response-plan-support-for-canadians-and-businesses.html 

The post Emergency Income Support for Individuals Who May Not Be Eligible for Employment Insurance (Including Self-Employed Creators)  appeared first on ALAC.

ALAS has gathered the following sources which provide information on the support mechanisms available (and planned to be available) to Canadian creators during the developing COVID-19 pandemic. This list is geared towards creators located in the Province of Ontario, but may include resources that are helpful to creators located across Canada.

We will be updating this page periodically as more information becomes available. If you are looking for assistance we recommend that you consider these resources, and continue to check back for more information as it becomes available. ALAS will continue to update this webpage as more information becomes available, and many of the resources listed below are similarly expected to update as things develop.

ALAS has also prepared a dedicated list of economic support benefits being offered by the Canadian Federal government, including the CERB, CESB, CBWS, CEBA, and CECRA. The dedicated list is available here.

If you are experiencing symptoms of COVID-19 and you are located in Ontario then the Province recommends you immediately contact Telehealth Ontario at 1-866-797-0000.

1) Governmental Support

2) Private Resources

The post Support Resources for Creators During the COVID-19 Pandemic appeared first on ALAC.

Enter to Win an iPad Mini by Completing a Survey in Support of the Formation of Canada’s First-Ever National Network of Legal Clinics for the Arts!

ALAS is helping to develop a national network of federally funded legal services for artists across Canada. As part of this initiative, we are conducting an important Needs Assessment Survey to provide a fulsome picture of artists’ needs from coast-to-coast.  The results of the Survey will be presented to the Canada Council of the Arts in April 2020, and all responses will remain anonymous.

The deadline to complete the survey by March 10, 2020. This survey will take approximately 5 – 10 minutes to complete and at its end you may elect to enter into an exclusive draw to win an iPad Mini!

To complete the Survey, simply click on the link below or cut and paste the entire URL into your browser:

Click here to fill out the survey

Cliquez ici pour l’enquête en Français

Background:

There are currently five legal clinics for the arts across Canada who work tenaciously to fund their efforts and service their local artists. A National Network of Legal Clinics for the Arts will unify and coordinate better access to free legal resources, services and information, empowering artists nationwide.

In August 2019, representatives from the individual legal clinics for the arts met with the Canada Council for the Arts and Canadian Heritage to relay the very real legal needs of the arts sector across this country.

The Canada Council for the Arts has committed to funding this Needs Assessment Survey for legal clinics and artists, which – WITH YOUR HELP – will lead to the  development of a Canada’s first-ever National Network for Legal Clinics for the Arts.

Please also help us identify persons and organizations we may have missed by sending us an email.

Your input is extremely valuable in providing outstanding legal service to Canadian arts. Thank you!

The post Complete a Survey to Help Develop a National Network of Legal Clinics for the Arts! appeared first on ALAC.