PALC Music & Musicians

MUSIC & MUSICIANS

What is a booking agency agreement?

Depending on where you are in your career, you may require a booking agent.  Booking agents work on your behalf to get you gigs, put you on tour and to secure revenue opportunities you would not otherwise have.
A sound booking agency agreement is pivotal to any professional relationship with a booking agent.  This agreement will outline the key terms and conditions of your arrangement and should include, but not be limited to: the term (duration) of the agreement; the scope of the work covered (is this exclusive to you music career, or does it include a broader range of gigs related to your creative practice/brand?); the obligations/duties of the agency (What services are being provided by the agency, and what are the conditions, limits, expectations around these services?); artist’s duties (the obligations of the artists during the term of the agreement – for example, to perform, to offer exclusive rights to the booking agency, etc.); compensation (what and how is the agent being paid?  Typically this is a percentage of revenue related to the bookings, but each contract will defer on the specifics of these terms.)

What do I need to know about performing in the U.S. as a Canadian Musician?

While slightly dated, the Canadian Federation of Musicians has published a very helpful article on what you need to know about performing in the United States.

Do I need a work permit to perform in the U.S. as a Canadian Musician?

Yes, Canadian musicians must apply for a B1, P1, P2, P3 visa or an O1/O2 visa to perform in the USA.  The specific permit required depends on your career status and the nature of the performance(s). The Canadian Federation of Musicians has an extensive guide covering this topic.  A shorter overview can also be found here.

What is Copyright?

Copyright is a form of intellectual property protection that applies for certain types of creative expressions (known as ‘works’). The types of works that may be eligible for copyright protection include artistic works, literary works, dramatic works, musical works, and compilation and collective works (e.g. literary anthologies and newspapers). Copyright arises automatically upon the creation of a work, and there is no requirement to register for copyright protection.
In Canada, for a work to be protected by copyright, it must be an original expression that is the product of intellectual effort by an author, and it must be fixed in a material form. Copyright does not protect facts or ideas or unexpressed concepts. It is also important to keep in mind that the author of a work may not be the owner of copyright in that work (although the author may retain their moral rights).
The owners of copyright in a work are exclusively entitled to use that work in certain ways, including to control the publication, reproduction, communication, modification, or distribution of that work. If someone besides the copyright owner exercises any of these rights (without the owner’s authorization) then it may amount to an infringement of copyright in the work (subject to various exceptions to copyright, including fair dealing).
Generally speaking, copyright protection for a work generally lasts for the lifetime of the author, and then for a further period that varies by country. In Canada, copyright protection currently lasts for 50 years from the end of the year of the author’s death. There are certain other conditions for works prepared by joint authors, and for works by unknown authors.
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.

Is my performance protected by copyright?

Yes, as a performer you have the sole right to: perform the work in public; to fix it in material form (e.g. record it); and to distribute the performance to the public (e.g. over radio, internet, etc.).  This means that you have the right to prevent unauthorized recordings and distribution of recordings of your performance, and that any individual profiting from an unauthorized reproduction or distributed recording of your performance would be infringing on your copyright.  Your rights as a performer are outlined in section 15 of the Copyright Act.  Your live performance agreement (e.g. with an event promoter) may have provisions relating to your performer’s rights, and this can be a point of negotiation.  Any unauthorized performance of your work in a theater or other entertainment venue, for profit, is copyright infringement.

Do I need to formally register my songs/performances/works in order for them to be protected?

No, a copyrightable work is automatically protected by copyright as soon as it is created and fixed in material form (e.g. recorded, performed, etc).  However, there are benefits to registering your copyright.  If you are ever required to enforce your copyright against infringement in a lawsuit, the copyright registration can be used as evidence of the copyright’s existence and can increase the likelihood and amount of awarded damages.

How do I register a copyright?

A copyright can be registered with the Canadian Intellectual Property Office (CIPO) here.  There is a fee of $50 to submit an application for this registration.

What should I do if someone infringes on my copyright?

Copyright infringement refers to the unauthorized use of your work (in its entirety or a substantial part) outside of “fair dealing.”  This may include someone copying, performing, selling, or distributing your work without permission.  

If you believe another party has infringed upon your copyright, you can contact this party directly to see if a resolution can be achieved without resorting to legal action.  If the issue cannot be resolved, you may want to seek legal advice, send a cease and desist letter, and/or pursue a civil suit in court to seek damages.

What is Fair Dealing?

Fair dealing refers to rights afforded by the Copyright Act to use (“deal” with) copyright-protected work without requiring permission from the copyright owner and without requiring the payment of royalties.  Uses of copyright material that falls under the category of fair dealing include uses for research, private study, education, parody, satire, criticism, review, and news reporting.  There are limitations and criteria for assessing what is “fair,” including: “(1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work.”  More extensive information on fair dealing in Canada can be found here.

How do I collect royalties for my live-music performances?

SOCAN (The Society of Composers, Authors and Music Publishers of Canada) is a performance rights organization that represents the rights of songwriters, composers and music publishers in Canada, ensuring creators are paid for their work.  For more information on collecting royalties and related questions, see SOCAN’s FAQs.

What are “neighbouring rights”?

“Neighbouring rights” refer to the rights of the “makers” (e.g. labels) and performers (musicians and vocalists) involved in the production of a sound recording to receive royalties related to public performance and/or broadcast of their recording.  According to the Copyright Act of Canada, these royalties are to be divided 50/50 between performers and makers, with an additional split of 40/10 between featured and non-featured musicians on the recording.
The performers’ shares of neighboring rights are distributed by MROC.  More information can be found here.

What is a trademark?

A trademark is “a combination of letters, words, sounds or designs that distinguishes one company’s goods or services from those of others in the marketplace” (CIPO).  The providers of goods and services (such as companies or creators) may use certain indicators to distinguish their goods or services from those of other businesses. These source indicators are known as trademarks, and can come in a variety of forms such as business names, logos, slogans, or packaging. If two businesses or proprietors offer the same types of goods and/or services using confusingly similar trademarks then this could be an infringement and/or passing-off (i.e. one business pretending to be another to fool customers).

As an artist/performer, you may want to trademark your band/stage name to protect your brand.  Before applying, make sure there are no existing bands/performers who have previously achieved success and are using, or have used, this name.  It is possible that older, defunct bands may have previously released or performed music under this name.  You will want to be certain that there are no IP restrictions on a given name before you begin employing this and building your reputation.  Once you are certain that you are the first band to use this name, you may register the name as a trademark with Canada’s Trademarks Office (TMO), to offer the best legal protection against any infringement of your intellectual property.   

What is a band agreement?

A band agreement is an internal agreement with band members, which outlines how the band will collectively conduct their business.  When forming a band, it is best practice for a band agreement to be created as early as possible in this process, as this is likely that the band will be operating on good terms and this time and are able to negotiate in a sensible manner.  The agreement should always be in writing, and should include provisions on, for example: ownerships of the band’s name (e.g. trademarks); ownership and control of all additional copyright and IP; distribution of band income and assets pertaining to any and all revenue streams; the obligations of each band member; terms to address any future disputes, a band member leaving the band and/or the dissolution of the band in its entirety.  It is recommended that the agreement be drafted by and/or reviewed by an attorney to ensure the agreement is adequately protecting the band and its members.

Additional Resources

Canadian Federation of Musicians

SOCAN – Society of Composers, Authors & Music Publishers of Canada