Let’s face it: lawyers aren’t that funny. But choosing the best one to protect your legal rights is no laughing matter.
Our team is here to provide guidance and legal strategy to comedy writers and stand-up artists. We will do the heavy lifting while you continue doing what you do best: making them laugh! Whether it’s negotiating your first comedy special or protecting your clever punchline, our experienced lawyers can help.
How Can We Help Build Your Career?
If you are a stand-up comic, it is crucial to consult an attorney about contracts that you will likely have to sign. You want to ensure your rights are protected, you are fairly compensated, and you avoid liability. These are a few ways we can help.
If you are participating in a recorded production, you will likely need to sign an appearance release which allows the use of footage that depicts your image and likeness in commercial settings. Similarly, if you are producing your own content, you should obtain appearance releases from your participants. The release should include details regarding where, when, and how the appearance will be used.
Touring, Merchandising, and Venue Agreements
Live performance agreements can be complex. You (or your authorized booking agent or manager) should have an agreement with the venue owner or event promoter, which clearly sets forth the following:
- the date, time, and length of performance
- the amount paid for the performance, and how and by what means you will be paid
- your rights to sell merchandise at the live event, such as clothing, CDs, DVDs, or other items
- licensing, insurance, or security requirements that the event producer must comply with
- procedures and remedies for cancellation and breach of the agreement
- any technical or other requirements (ex. equipment, sound checks, etc.)
Live streaming allows performers to publicly broadcast audio and video. It raises many intellectual property and other legal concerns for the performer and the producer/broadcaster. Streaming platforms and studios typically have Terms of Service that prohibit users from infringing the copyright of others. This protects them against lawsuits because you will be required to indemnify them for any damages owed. If you are live streaming your performance, you must take care that you are not using anyone else’s copyrighted work, which includes not just the content of what you say, but also works that may be in the background of your video stream (ex. art, music, buildings, etc.)
Similarly, you may be liable under trademark, trade secret, privacy, and publicity laws based on material or people that appear in your livestream, even if it was accidental. Typically, laws protect against unauthorized commercial use, but in some cases, live streaming for personal use may also violate privacy rights. Your location may also present legal problems if you do not have the right to be on the property where you are streaming. As a result, it is crucial to obtain appropriate permissions and releases to avoid lawsuits arising from violating someone’s rights.
Finally, if you are being paid to endorse a brand, that must be disclosed to the audience pursuant to Federal Trade Commission rules and should be part of your agreement with the applicable brand.
Public Performance Royalties
Comedians have more in common with musicians besides touring, performing, and selling merchandise. Like many musicians, comedians not only perform their material, but also write it. Recently, comedians have discovered that their written work entitles them to the same types of royalty income that songwriters have enjoyed for decades.
For example, songwriters receive public performance royalties from live performances, broadcasting of recorded performances over radio and TV, as well as streaming of performances over the internet. Songwriters have earned public performance royalties through organizations like ASCAP and BMI for decades. However, only recently have comedy writers, and other creators of spoken-word recordings, learned about their public performance rights under the Copyright Act and subsequently sought appropriate compensation.
If you’re a comedian who writes original material or you write jokes and routines for others to perform, you should assert your performance rights directly or through one of the recently formed licensing organizations.
What Are Your Top Legal Concerns?
Comedians and comedy writers face some common problems but may not realize they have legal recourse. We help clients enforce their rights under a wide variety of laws.
The rise of social media has made it easy to steal and profit from someone else’s jokes. While peer pressure keeps most comedians from joke theft, joke aggregators are outside the industry and improperly publish jokes and build a large following for themselves while damaging the careers of the original writers and performers. However, copyright law does offer some protection.
Copyright is a form of intellectual property that applies to original works of authorship that are fixed in a tangible medium. An original work is one that is independently created by an individual and involves at least some degree of originality. A work is considered fixed in a tangible medium when, under the authority of the author, “it is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated.” For example, a joke may be “fixed” when it is written down or recorded. Not every joke, however, is copyrightable as it may not meet one or more of the stated requirements.
Where you do have a valid copyright, you can enforce your rights under the Digital Millennium Copyright Act (DMCA). The DMCA allows owners of copyrighted works to send written notices to online service providers requesting that they remove content that infringes on the owners’ copyrighted works. These “takedown notices” must meet specific statutory requirements but provide a relatively simple way to force a site to remove your copyrighted material.
Rights of Publicity and Privacy
Comedians and writers have publicity and privacy rights under some state laws. The right of publicity refers to the right of an individual to control the commercial use of his or her name, image, likeness, or other similar aspects of the individual’s identity. About half of the states in the US recognize a right to publicity. For example, New York provides protection for a person’s “name, portrait, picture or voice” which is used within New York “for advertising purposes or for the purposes of trade” without the written consent of that person. Monetary damages and injunctive relief are available, but there are some exceptions.
Defamation: Slander and Libel
Jokes about people, especially public figures, are common in comedy which can lead to those individuals threatening suit for defamation (slander or libel). However, the first amendment protects free speech, and, in many instances, comedians can avoid liability.
Defamation is the publication or communication of a false statement of fact about a person to a third party, which causes harm to the subject-person’s reputation or constitutes defamation per se without privilege or the subject-person’s consent. Defamation can either be published or communicated in writing (called “libel”), or verbally (called “slander”).
Jokes may be protected from defamation claims on several grounds. First, they could constitute opinions rather than statements of fact. Furthermore, they may be considered satire, which is a form of speech which ridicules people or ideas as a form of public shaming and social commentary. Satire often involves the government or political figures.
Breach of Contract
Comedians and writers may sign many contracts over the course of their careers. Best practice is to have legal counsel review all contracts before signing to ensure the terms are in your best interests. If a breach does occur and you have been injured, an attorney is invaluable in helping enforce your rights and to advise you in obtaining fair compensation. Depending on the nature of the breach, different remedies may be available including monetary and liquidated damages, specific performance, and equitable relief. If you are the breaching party, you may have defenses available to avoid or minimize your liability.
Claims under the Freelance Isn’t Free Act
In 2017, New York City enacted the Freelance Isn’t Free Act which mandated that freelance agreements worth over $800 must be in a detailed, written contract and provide timely payment in full. It also prohibits certain types of retaliation against freelancers who seek a written agreement and/or payment. A freelance writer or performer can obtain double damages, attorneys’ fees and costs, and other compensation for bringing a claim if the hiring party does not comply with the agreement.
Building a successful career in comedy can be difficult. While hiring an attorney cannot ensure fame and fortune, it can help you avoid liability, get paid fairly, and enforce your rights against others unjustly seeking to profit from your efforts.
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