Marc D. Ostrow - Romano Law

Marc D. Ostrow

Senior Entertainment and Copyright Counsel

Marc Ostrow – Profile

Admitted

New York

U.S. District Court for the Southern District of New York

U.S. District Court for the Eastern District of New York

Law School

University of Chicago Law School, Chicago, Illinois. J.D.

University

University of Pennsylvania, Philadelphia, Pennsylvania. B.A, magna cum laude

Awards

Others

Introduction to Music Law – LawLine

Areas of Practice

Entertainment, Media & Sports

Copyright Infringement

Marc is a copyright and entertainment attorney and chair of the firm’s music industry practice.  He represents songwriters, recording artists, labels, music publishers, authors and other creatives as well as businesses that produce or license intellectual property.  He has been recognized by his peers as a 2022 New York Super Lawyer for entertainment and sports law and has been rated “AV-Preeminent” by Martindale-Hubbell.

With more than thirty years’ experience as an executive and attorney, both in-house and in private practice, Marc has worked in private equity, corporate and start-up environments.  He uses his varied experience to counsel his clients as to both the legalities and the practicalities of matters, including those involving strategic planning, employment, negotiation strategy, asset sales and acquisitions and dispute resolution.

Before returning to private practice, Marc ran the New York office of London-based classical music publisher, Boosey & Hawkes, representing many of the greatest composers of the 20th and 21st centuries, including several Pulitzer Prize and Grammy Award winners.  He increased profitability, streamlined operations and hired key staff.  Marc was also responsible for the office’s legal, licensing, copyright and contractual matters.  Prior to Boosey, Marc was a Senior Attorney with BMI, where he prosecuted copyright infringement actions throughout the country, defended the company in lawsuits and advised management on legislation affecting songwriters.  He began his legal career as a litigator with large and mid-size firms.

Since 2017, Marc has served as Adjunct Professor of Law at Cardozo Law School, which has been rated by Billboard Magazine as the top law school for music law.  He has been interviewed on live television regarding his views on high profile copyright infringement cases on NewsNation, Fox, Scripps TV and CourtTV. Marc is also a speaker at various industry and educational organizations and recently served on the panel about copyright and book publishing at the 2023 New York Law School Intellectual Property Symposium. His Introduction to Music Law video presentation is available for CLE credit through Lawline.

Marc is a former Trustee of the Copyright Society of the USA and has served on the boards of the New York Chapter of the Association of Independent Music Publishers and the Music Publishers Association.  He has been quoted in Time, Washington Examiner and the Law360 blog.  As a pianist, Marc’s favorite composers include Chopin, Bach, Gershwin and Thelonious Monk although he still plays the Elton John and Billy Joel songs he grew up with. He also writes and performs his own songs and compositions.

Representative Recent Matters

  • Negotiated recording contract with major label for Grammy Award-winning composer (previously negotiated music publishing agreement with major music publisher)
  • Served termination notices and negotiated deal to re-assign post-termination rights in copyrights to several hit songs to major publisher on behalf of heir of Rock & Roll Hall of Fame and Songwriter Hall of Fame artist
  • Closed deal representing purchaser of interests in songs from iconic Broadway musical
  • Created new contract songwriter and licensing contract templates for music publisher
  • Negotiated recording contract and drafted side artist agreements for debut album nominated for a Grammy Award for best solo classical vocal performance
  • Negotiated and drafted agreements for licensing poems of US Poet Laureate for new compositions for choir
  • Created artist management agreement template for boutique artist management agency

Blog Entries

  • Why the Warhol Foundation Lost in the Supreme Court?

    On May 17, 2023, the Supreme Court issued its opinion in the Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, a highly anticipated decision in a well-publicized case involving issues of fair use.  In this post, I’ll briefly recap the background to this case and discuss why I believe that the high court made

  • Why Ed Sheeran Won: Not All Copying Constitutes Infringement

    Ed Sheeran has recently emerged victorious in a recent copyright lawsuit brought by the estate of songwriter Ed Townsend, co-author of Marvin Gaye’s hit song “Let’s Get It On.”  The lawsuit alleged that Sheeran’s hit song “Thinking Out Loud” copied key elements of the Gaye song, the harmonic progression and melodic and rhythmic elements that

  • Does Photographing Someone Else’s Artwork Constitute Copyright Infringement?

    Generally, under U.S. copyright law, the person who created a work is the copyright owner.  As a result, a photographer who takes a picture would own the rights to the image.  But what if the photograph is taken of something where the copyright is owned by another party, such as a work of fine art?

  • What Authors Need to Know About Morals Clauses

    For someone not familiar with the world of book publishing, a publishing contract can be an intimidating document.  One recent addition to many publishing contracts is the inclusion of “morals clauses,” which allow a publisher to cancel a book deal if an author is accused of engaging in illegal, immoral, or publicly condemned behavior that

  • Who Holds the Trump Card in the Copyright in Interviews?

    Former President Trump recently filed a lawsuit against journalist Bob Woodward and Woodward’s publisher, Simon & Schuster, over the release of audio recordings from their interviews for Woodward’s audio version of his book The Trump Tapes.  Trump is alleging that he owns the copyright to the interview recordings or at least his answers to Woodward’s

  • What is Copyright Fair Use?

    Fair use has been making headlines lately, as the Supreme Court hears Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, a case considering whether Andy Warhol infringed, or made fair use of, a photographic reference when he created one of his iconic silk-screen portraits.  If you’ve ever wondered how some search engines can

  • What You Should Know Before Starting a Film and TV Streaming Platform

    There is no question that most people watch their favorite television shows and movies through streaming platforms.  And as streaming grows, so do the number of streaming platforms.  Recently, a court awarded Disney, Netflix, Universal and other major studios $30 million after a court found that two streaming platforms had been illegally streaming content created

  • Libraries Lobby for E-Book Bill

    Libraries have long been a valuable resource for communities, providing crucial access to information and knowledge through community programming, internet access, physical books, and in recent years, digital books as well.  However, as the popularity of e-books continues to grow while funding for public libraries continues to dwindle, libraries are facing challenges in acquiring licenses

  • The FTC Wants to Ban Non-Competes: What That Means for You

    A new rule proposed by the Federal Trade Commission (FTC) would ban employers in the United States from forcing non-competes on their employees or independent contractors.  If the rule is implemented by the FTC, then non-competes would be illegal at the federal level and would affect employers and their workers across the country. What is

  • Step Up Your Startup: Critical Employment Contracts to Keep In Mind As You Grow Your Business

    Starting or growing your own company can be exciting, but it’s critical to have certain agreements in place to protect yourself and your business. When welcoming new staff on board, whether it’s the first person you’re hiring or if you’re bringing them onto an already established team, it’s important to have specific documents prepared.  Here’s how

  • Why Get a Federal Trademark Registration?

    Trademarks, and the rights of trademark holders, are commonly misunderstood.  Many business owners want to know the advantages of federally registering a mark. What Is a Trademark? A trademark is a word, phrase, symbol or design (or a combination of those things) that identifies and distinguishes the source of certain goods or services.  Essentially, a trademark is used to

  • What Does It Mean That Justin Bieber Sold His “Catalog”?

    It’s been widely reported recently that Justin Bieber, at the ripe old age of 28, has “sold his music catalog” for somewhere around $200 million to Hypgnosis Songs Capital.  Usually, these megadeals are reserved for “legacy” artists and within the past few years it seems like every songwriter and recording artist old enough to collect

  • Art and Artificial Intelligence Collide with Copyright Law

    The likely cancellation of the copyright registration for Kris Kashtanova’s 18-page illustrated book, Zarya of the Dawn, is the latest chapter in the ongoing collision between copyright law and works generated using artificial intelligence (AI).  While the text of the book was written by Kashtanova, the artwork accompanying the book was all AI-generated through the

  • The Speak Out Act Ungags Victims of Sexual Harassment and Assault

    No doubt influenced by highly publicized and often disturbing cases of sexual harassment and assault that have been featured in the media, Congress passed the Speak Out Act (the Act), effective as of December 7, 2022.  As had been noted in many instances — and in the “findings” in the Act, serial abusers are often

  • What Are the Three Basic Types of Music Publishing Deals for Songwriters?

    Federal copyright law says that when you finally write the last note or find the perfect last lyric for the song you’re writing, you own the song in its entirety.  More specifically, as soon as your song is “fixed in any tangible medium of expression” (for example, you put the pencil down on your handwritten

  • Key Contract Terms for Musicians and Managers

    Most musicians want nothing more than to spend time creating and performing.  But being a professional artist also involves running a business – a responsibility that not all musicians can undertake.  Hiring an effective manager is one way that artists can ensure they have plenty of time to hone their craft.  In addition to handling

  • What Songwriters Should Ask Before Working With a Music Publisher

    There are many types of songwriters in the music industry.  Like Taylor Swift, some songwriters write songs for themselves to perform.  Others, like Meghan Trainor and Chris Stapleton, began their careers writing songs for other artists.  For example, Trainor has written several hits for groups like Rascal Flatts and Fifth Harmony, while also writing most

  • What Authors Should Know About Agency Agreements

    Navigating the literary world as a debut author can be a difficult and frustrating experience.  Many successful authors choose to hire a literary agent to help them through the publishing process.  Literary agents help authors by providing their industry knowledge and leveraging their connections to help sell an author’s book.  Before an agent will represent

  • Breaking Down a Side Artist Agreement

    A side artist agreement is a contract, typically between the main artist (or sometimes the artist’s label) stating the terms under which a vocalist or instrumentalist is hired to perform on one or more tracks.  They are generally one-time employment contracts that establish that the side artist’s performance is a work-made-for-hire for the benefit of

  • Does My Employer Have to Give Me Time Off to Vote in New York?

    You’ve heard it said over the airwaves ad nauseum as election day approaches – regardless of your political affiliation, it’s important to get out and vote.  Unfortunately, this is often easier said than done since Election Day is neither a federal nor state holiday.  However, many states, including New York, have laws that require employers

  • Understanding Music Royalties

    The music industry is an economic powerhouse, earning an estimated revenue of $8.8 billion in 2021 alone.  Despite the industry’s monstrous success, key players such as recording artists, record labels, songwriters, composers and music publishers – the heart and soul of the music industry –often leave a substantial amount of money on the table.  The

  • Five Things Classical or New Music Composers Should Ask About Working With a Publisher

    A music publisher is an entity that promotes, licenses, sells, distributes and otherwise commercially exploits musical compositions.  Even if you market and distribute your works yourself, you’re still acting as your own music publisher, which works fine for many new music, contemporary classical and other composers who write orchestral and large-scale works.  Though some composers

  • Are Transformative Fair Use Principles Foul to Musicians?

    In my previous post, I sped through the history of fair use from Justice Story to the current statute, and strolled through a few examples of the analysis that’s typically used when applying the four factors of Section 107 of the Copyright Act, the statutory test for fair use. But while courts always construe the statutory factors, the “real” fair

  • Estate Planning for Composers and Songwriters: 10 Things to Do Before You Die

    Preparing for your eventual demise isn’t fun, but there are far more important things you can do for your musical legacy than writing a requiem.  Proper planning for your death or incapacity is important even if you don’t have a spouse or kids and it involves more than just making a will. So, here’s a

  • Collaboration Agreements: How to Avoid the “Joint Work” Rules, and Why It’s Almost Always Better to Have a Written Agreement

    Any time that you create a copyrightable work with someone else – whether it’s co-writing a song, a play, a book or a treatment for a television series – you and your co-creators should sign a collaboration agreement.  Without a collaboration agreement, the default ownership rules for joint works apply. WHAT ARE COLLABORATION AGREEMENTS? Collaboration

  • Rights for Public Performances of Music

    Copyright laws provide authors with a “bundle of rights.”  One such right is the right to perform the copyrighted work publicly.  However, understanding public performance rights in the context of music can be complicated.  We first have to understand what constitutes a public performance.   WHAT IS A PUBLIC PERFORMANCE? The Copyright Act defines as

  • Music Sampling Rights: What You Need to Know

    Like many forms of creative expression, music is protected by copyright law.  That means a license is usually necessary if you create a new work using pre-existing music created by someone else (otherwise known as a “derivative work”).  What rights do you need to license for music sampling? MUSIC COPYRIGHT BASICS There are two separate copyrights

  • How to Protect Trade Secrets in New York

    Like many fellow business owners, you may have confidential information or business “secrets” kept under lock and key.  These secrets could be a family recipe for the next restaurant, a coding algorithm built over the years, a carefully cultivated client list, a specialized manufacturing process or data and research compiled within the company.  But regardless

  • Six Reasons Why You Should Register Your Works With the Copyright Office

    Many might wonder why songwriters, recording artists, and other creative people should register their works with the U.S. Copyright Office.  After all, under the current Copyright Act, registration with the Copyright Office is not required to obtain a copyright in a work. Under Section 102(a) “[c]opyright protection subsists, in accordance with this title, in original works of

  • Copyright Conundrums for Collaborators

    Here’s a situation that’s commonly misunderstood among creative collaborators: Jack and Jill agree to write a song together.  They call it “Tumblin’ Down the Hill.”  Jack writes the music and Jill writes the lyrics.  Who owns what? A) Jack owns the music and Jill owns the lyrics. B) It depends on whether the music or

  • Do You Have the Chutzpah to Take a Gamble on Fair Use?

    When I was a kid, my siblings and I played a board game called Chutzpah, which is a lot like Monopoly, only the “properties” weren’t things like Boardwalk, Park Place and Marvin Gardens – but Son Marky’s Bar Mitzvah with Velvet Yarmulkes, Weekend in the Catskills and Yacht Named Gevalt III.  Rather than draw cards labeled “Community Chest”

  • Do Candidates Have the Right to Conscript Songs for Political Purposes?

    In anticipation of this year’s midterm elections, we can look forward to the usual PAC moneymen, countless commercials, polls, trolls, sound bites and sniping.  But there is another tradition within our national elections: one candidate or another enraging some well-known recording artist by using the artist’s song without consent. Already we’ve seen singer-songwriter, Jackson Browne,

  • Is Your Talent Agency Agreement Fair?

    Updated: October 5, 2022 You’ve just started a career in the entertainment industry – whether that means you are an actor, model, musician or social media influencer.  You have found a talent agent, and you think they might be able to help you find work, assist you in making connections and negotiate contracts on your

  • Staying in Sync with Rights Owners: How to Clear Music for TV and Film

    Updated: October 5, 2022 Are you creating a video, movie, commercial or video game?  Have you ever wondered how to legally include music in your work?  To avoid stealing or violating a musician’s copyright, you should obtain a license. There are two copyrights in a song: (1) the master (or sound recording), and (2) the composition (underlying music and lyrics).  It may be

  • Here’s Looking at You, Kid.  What To Know Before Employing Minors in New York.

    Behind child actors such as Iain Armitage, and child influencers such as Ryan’s World and Niana Guerrero, there are the contracts that made their success possible.  New York Labor Laws also require that contracts with minors include provisions to ensure that the children are not exploited because of their youth.  While not every employed minor

  • No, You Don’t Own Your Arrangement of That Hit Song

    A guitarist contacted me recently.  He creates arrangements of popular songs and puts the PDFs of the music for sale on his website.  The first thing I asked him is whether he got permission from the copyright owners of the songs to post his arrangements, being pretty sure he hadn’t.  He was quite surprised and

  • Joke Theft is No Laughing Matter

    Comedians have likely been stealing jokes for as long as jokes have been told.  Professional comedians make their livelihood off their own original jokes through a variety of ways including, most recently, asserting public performance rights.  As a comedian, what options do you have if someone steals your stuff? What is Joke Theft? Joke theft

  • Comedians Suing Over Writer Rights Is No Joke

    The latest development in the world of comedy law is a flurry of lawsuits in recent months by comedians suing Pandora and SiriusXM, and a continuing heated dispute with Spotify (who initially yanked the comedy albums of hundreds of comics off their service).  The dispute is over payment of public performance royalties when these entities

  • Taylor Swift Tagged for Infringement – But Not for Copying Words or Music

    If you’re a megastar songwriter and recording artist like Taylor Swift, there’s a 100% chance you’ll be sued repeatedly for copyright infringement over your chart-topping hits.  For example, while Ms. Swift still has not been able to shake off the long-running suit over her 2014 hit, “Shake It Off,” she was recently hit with another

  • Why Some Copyright Plaintiffs May Be Awarded More Money in California Than in New York

    People generally recognize that under our federal system, individual states may have differing laws in a particular area, such as criminal law.  Sometimes differences in various states’ laws make national headlines.  However, individuals and companies generally expect that the application of a federal statute will be the same whether a lawsuit is filed in a

  • Copyrighting and Licensing Choreography

    A choreographic work is one where the “composition and arrangement of a related series of dance movements and patterns are organized into a whole.”  It may be used to convey a story, theme or abstract concept and can include elements such as rhythmic movements of the body and the sequence of those movements. Choreography is

  • Do I Have to Give Two Weeks’ Notice in New York City?

    You have decided to leave your job for a new one or personal reasons.  The next step is to resign from your current position.  What is the best way to do that?  Do you have to give two weeks’ notice in New York City?  While generally there is no notice requirement there are some recommended

  • Mariah on the Copyright Naughty List?  Not So Fast…

    As has been reported all over the media, Mariah Carey has been sued for copyright infringement over her Christmas chestnut, “All I Want for Christmas Is You.”  The plaintiff, songwriter Andy Stone, claims he wrote a song with the same title in 1989 that had “extensive airplay” in 1993, the year before Carey’s seasonal evergreen

  • Weighing Your Options: An Author’s Guide to Option Clauses

    For authors, signing a literary agreement can be both exciting and nerve-wracking.  While authors may be thrilled to see their books in print, they need to ensure that they’re getting the best deal possible.  Literary agreements include many provisions that authors should pay particularly close to, including clauses that address copyright ownership, royalties and subsidiary

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