What are NFTs? 

NFT stands for “non-fungible token”, and no, it has nothing to do with mushrooms. When something is non-fungible, it means it’s a completely unique, one-of-a-kind item that can’t be replaced or replicated. 

For the art aficionados in the room, you may know of Banksy’s Girl with Balloon murals spread throughout London, and the subsequent painting that found its way into a Sotheby’s installation in London in 2018. You might also remember how guests looked on in horror as the painting – the only one of its kind – began to self-destruct. Love really was in the bin after all.

Blockchain enthusiasts can breathe easy knowing their NFTs can’t be decimated in a similar way. In fact, that’s one of the touted benefits of NFTs: the inability to replicate them makes them not only unique but indestructible. That’s because NFTs are entirely digital and created using blockchain technology. 

How do NFTs work?

The blockchain is an online ledger where transactions are recorded. For example, Bitcoin and Ethereum both operate on blockchain technology. Once a transaction is laid down, it can’t be removed or changed. The transaction produces something called a hash code, which is a big string of letters and numbers that incorporates information from the transaction. 

Hash codes can be used to identify unique digital assets, called tokens. NFTs are unique digital assets that are tied to real-world objects, like songs, photos, artwork, or even tweets. The non-fungible part means that the token can’t be replaced or exchanged for something identical.

Here’s the tricky part: when someone buys an NFT, they’re typically not buying the actual object it describes – they’re only buying the NFT. The NFT can act as a sort of certificate of authentication. Depending on what was coded when it was minted, the NFT can certify ownership of a physical asset like a painting or a piece of music, or a piece of digital art like a 3D Metaverse rendering. If the NFT is on a blockchain like Ethereum which can handle executable code, the NFT can contain so-called smart contracts (which aren’t very smart, they’re just code) that can do things like automatically remit to the original owner of the NFT a percentage of each subsequent sale of the NFT called resale royalties.

Why would someone want an NFT?

Only one person can own the NFT at a time, so they’ve become somewhat of a novelty among tech and cryptocurrency enthusiasts. Although you can copy digital files, you can’t copy ownership. And just like you can own a copy of Van Gogh’s Starry Night, a copy doesn’t give you ownership. But it does give you cool bragging rights, which a lot of people seem to want these days. 

Bragging rights aside, NFTs have given artists a big advantage in leveraging their rights, accessing new markets, and expanding creativity. And those bragging rights can come with a steep price tag. The artist Beeple sold Everydays: The First 5000 Days for over $69 million USD at a Christie’s action. Death of Old, a 50-second video by musician Grimes, went for $388,938 USD. 

NFTs can also be minted in a series, say 5,000 as unique tickets for an event. According to Ethereum, NFTs are compatible with anything built using its platform. An NFT ticket for an event can be traded on every Ethereum marketplace, for an entirely different NFT. You could trade a piece of art for a ticket!

How do you make money off NFTs?

Several marketplaces have opened up for artists to sell their work. San Francisco-based startup Bitski aims to be a Shopify-like storefront for creators. Niftie Gateway calls itself the “premier marketplace” for Nifties” (NFTs). And Mintbase is a platform that helps artists get started on creating and selling their digital assets. 

NFTs are perfect as digital merch items for recordings artists to sell to fans, and for photographers or other visual artists to sell in connection with limited editions in either digital or physical formats, because the NFT’s can be authenticated.

NFTs are also used as investment vehicles, similar to cryptocurrency like Bitcon and Ether. Like all investments, keep in mind the potential future value and the various tax laws in your jurisdiction when getting into the market and selling. Note, the tax man might be watching your social media feeds to compare lifestyle with reported income. Like other assets or investments, when it comes time to sell or when you receive revenue, any profit you made is taxable, in principle, even if done in a Metaverse and for example occurring entirely over a blockchain.

Here’s 8 Legal Implications of Minting & Owning NFTs

1 – The NFT is just lines of code, which themselves are capable of copyright protection. But in the process of becoming minted, the NFT will digitally point to a separate work of copyright, a trademark and/or person elsewhere on the Internet, and perhaps describe a separate physical object. 

2 – To the extent that the NFT points to a protected work like a sound recording, composition, artwork, trademark, etc. or to a living person, the right to point at that work or person for commercial gain might need to be cleared. 

3 – To the extent that a copy of the protected work appears in a link on the Internet meaning that the copy is hosted somewhere online, well, that’s a copy that’s been created and without clearance it’s an infringing copy. 

4 – This is an evolving area that is fact-specific. A guiding principle here is that if you’re minting an NFT or considering buying one and wondering if it’s legal or authorized, you’d best be watchful because the way the law works generally speaking is, if you’re leveraging someone else’s rights for commercial gain, you’re likely going to need permission – a license – and that permission is likely going to cost you money – otherwise the NFT is not lawful and you’re setting yourself up to be sued for making it and/or finding yourself owning an NFT that’s not worth much or anything because it’s an unauthorized bootleg. 

5 – Every NFT must have an owner and this is of public record and easy for anyone to verify. However, for example, owners can still hide behind anonymous emails accounts used when the NFT was minted and reserved only for NFT ownership so there is no other digital footprint evidencing the real person like an Instagram page.

6 – Someone buying an NFT should consider where the underlying media resides and who has the obligation of storing it. That is, what if the NFT’s media resides on a server and then the server goes offline? The NFT will no longer be viewable because it won’t point to anything live. 

7 – Ownership of the copyright in any works that are automatically purchased with the NFT still needs to be confirmed by an assignment signed in writing in order to comply with typical copyright law formalities. In other words, an additional, written assignment is needed to convey the full IP rights in the underlying work – if that’s the intention – otherwise the NFT alone would be purchased. An area that’s ripe for confusion and litigation is whether there has been a uniqueness agreement (e.g. that only one NFT would be minted by the copyright owner for that particular digital asset and not part of a later series, perhaps), which could be written or implied (since it was in the nature of a license or contractual term and not full ownership conveyance).

8 – NFTs are digitally unique – no two NFTs are the same. This is the exact scarcity that can give an NFT value depending on the demand to own it. There’s been some speculation online that artists need to hurry up and tokenize their works before infringers do it instead, thereby ruining the opportunity to monetize the work through an NFT. There is some truth to that, but the mere fact that someone else has minted an NFT for a specific work, does not mean that the true owner is foreclosed from doing the same thing. In that situation there would be two NFT’s: the authorized NFT, and the bootleg. The bootleg might have satisfied some level of demand for owning the NFT, and perhaps thereby decrease the desirability of the authorized one. But then, what’s the point of owning a genuine fake? That seems to defeat the main purpose of NFTs, which is to make and own digital assets that are unique.

Special thanks to Nicole Dinn for her assistance in preparing this article. Nicole is currently completing her law degree at Osgoode Hall Law School, Toronto, and will soon begin a clerkship with the Ontario Superior Court of Justice.

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MIDEM Digital Edition – 2021. This year again due to covid-19 the global music industry conference, MIDEM, will be held online November 17 and 18, 2021. I have been honoured to be co-editor of the 2021 annual book for MIDEM published by the International Association of Entertainment Lawyers, with my colleague Marijn Kingma, a partner at the law firm Höcker Advocaten in Amsterdam, Netherlands.

The book is entitled, “Nationalism vs. Globalism: Regional and Transnational Legal Issues Reshaping the Entertainment Industry.”

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Here in Canada a trademark examiner is guided by paragraph 9(1)(j) of the Trademarks Act which prohibits the adoption of any trademark consisting of, or so nearly resembling as to be likely to be mistaken for, any scandalous, obscene or immoral word or device. The Trademarks Examination Manual, published by the Canadian Intellectual Property Office (CIPO) states:

• A scandalous word or design is one which is offensive to the public or individual sense of propriety or morality, or is a slur on nationality and is generally regarded as offensive. It is generally defined as causing general outrage or indignation.
• A word is obscene if marked by violations of accepted language inhibitions or regarded as taboo in polite usage. This word “obscene” is generally defined as something that is offensive or disgusting by accepted standards of morality or decency; or offensive to the senses.
• A word or design is immoral when it is in conflict with generally or traditionally held moral principles, and generally defined as not conforming to accepted standard of morality.

The CIPO Manual goes on to review the caselaw, which in turn reflects accepted standards of morality that seem quaint and out of date. Here’s a question: is old caselaw on accepted standards of morality still relevant today?

The CIPO Manual states:

In La Marquise Footwear Inc. Re. (1946), 64 R.P.C. 27, Mr. Justice Evershed overruled the Registrar’s decision to refuse to register the non-invented word OOMPHIES for shoes on the admitted ground that “oomph” was American slang for sex appeal. Evershed J., while overruling the Registrar, made it quite clear that he had no disagreement with the principles upon which the Registrar acted, stating at page 30:

I must wholeheartedly accept the proposition that it is the duty of the Registrar (and it is my hope that he will always fearlessly exercise it) to consider not merely the general taste of the time, but also the susceptibilities of persons, by no means few in number, who still may be regarded as old fashioned and, if he is of the opinion that the feelings or susceptibilities of such people will be offended, he will properly consider refusal of the registration.

Additionally, Miss Universe, Inc. v. Bohna (1991), 36 C.P.R. (3d) 76 (T.M.O.B.) [affirmed (1992) 43 C.P.R. (3d) 462 (F.C), and reversed for confusion (1994), 58 C.P.R. (3d) 381 (F.C.A)] states at 82 of the decision:

I must say that at present we live in what is commonly called a “permissive age” where previously accepted moral standards are undergoing change. The difficulty is to determine what are the acceptable standards today and what would still be considered immoral, scandalous, or obscene by some people by no means few in number.

Although it does not specifically say “not insignificant”, the wording “by no means few in number” connotes the same idea.

In another case, the refusal to register a trademark was based on the argument that the trademark would offend people’s religious sensibilities. In Hallelujah Trade Mark [1976] R.P.C. 605, the word HALLELUJAH was refused registration in respect of articles of clothing for women on the grounds that the word had an overwhelming religious significance and, as applied to the goods, would offend accepted mores of the time. As such, the Office is of the view that trademarks containing any religious references are generally not considered to be proper subject matter for obtaining a trademark registration.

A trademark consisting of the representation of a topless dancer combined with a second representation of the torso of a topless dancer was found contrary to paragraph 9(1)(j) and was refused by the Registrar pursuant to paragraph 12(1)(e) (see application No. 409,882).

Another question is whether in Canada the ability of trademark examiners to refuse trademarks violates basic constitutional rights. There is no easy answer. Freedom of expression is protected as a fundamental freedom by the Canadian Charter of Rights and Freedoms, but the Charter permits the government to enforce reasonable limits “that can be justified in a free and democratic society” – so, those rights are not absolute.

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Blockchains are a new, exciting, mysterious, transformational technology – surrounded by a lot of hype. Being a lawyer, I viewed this as a challenge. I wanted to investigate. I wanted to cut through the hype and at the same time contribute thought leadership to my area of practice. The result is my paper for the International Association of Entertainment Lawyers’ 2017 book, Tech: Disruption and Evolution in the Entertainment Industries. The entire book is for sale on the IAEL’s website. A copy of my paper is available here: The Truth About Blockchains in the Music Industry – Spring, 2017.

The blockchain paper was presented at Midem in Cannes, France last week, where I appeared on a panel with Cecile Rap Veber, Director of Licensing and International at SACEM, the Society of Composers and Publishers of Music in France; Virginie Berger, CEO of Armonia, the European-based licensing hub for digital platforms; and Alex Locos, CEO of BMAT, a music monitoring technology company based in Barcelona, Spain – moderated by Maxime Gazeau from the Law Firm ATurquoise based in Paris, France. I have posted a condensed version of my presentation, with a few extra thoughts, on LinkedIn. Click here to read the post on LinkedIn.

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Thankfully the jury in the United States District Court, Central District of California got it right in the Michael Skidmore v. Led Zeppelin, et al case decided June 23, 2016.  There were no “Blurred Lines” this time, like in the 2015 Marvin Gaye jury decision over the song by that name, written by Pharrell Williams, Robin Thicke, and Clifford Harris, Jt. p/k/a T.I. which is still under appeal from the same U.S. District Court. This time, there was no convoluted 47-page jury instruction given to a panel of non-expert jurors, and there was no confusion over the difference between a song and its arrangement.

Jimi Page and Robert Plant essentially shredded the District Court lawsuit that had been filed against them, that had accused them of copyright infringement by writing and releasing the iconic Stairway to Heaven – an outstanding commercial success, despite having been long-since hated and banned from being played at most guitar shops.

The Skidmore case had been filed on behalf of the estate of a writer who – while he was alive, had not wanted to sue for infringement of his song entitled Taurus. It is interesting to contemplate what he knew and thought about the two songs together – i.e. what he didn’t act on. A good defence of laches for delay may have set in, but it seems that a re-mastered release a few years ago may have revived the dead man’s heirs’ cause of action.

In any event, here’s hoping the court also will exercise its discretion in the Skidmore case to award the defendants their legal costs against those heirs – even if Page and Plant are filthy-rich rock stars – to send a message that damages claims for artistic theft should never be made lightly. This was an infringement try-on that simply didn’t fit. While the music industry might still be suffering from lower revenues due to the proliferation of ad-supported streaming sites, litigation should not be encouraged as an alternative way to monetize music.

There was never any doubt in my opinion, as an everyday music fan, that Stairway to Heaven is a hackneyed old standard that was reworked to sublime bombastic perfection by Led Zeppelin – forevermore to be stuck in our heads, and driving us classic-rock nuts.

Putting an end to the Skidmore claim for copyright infringement, the jury stopped at Question Number 4 which was: “Do you find by a preponderance of the evidence that original elements of the musical composition Taurus are extrinsically substantially similar to Stairway to Heaven?” The members of the jury thought not – and therefore declined to find liability; i.e. they did not find that Page and Plant used original elements of the musical composition Taurus. This likely was because none of the parts used by Page and Plant – that might have been common between the two works – were copyrightable as original elements of a song.

Even if the jury had found there was copying by Page and Plant, the jury would have put an end to the Skidmore claim at Question Number 7 which was: “Do you find by a preponderance of the evidence that the portion or portions of the musical composition Taurus that were copied in Stairway to Heaven are commonplace, trivial, or appeared in other works before the musical composition Taurus was created?” Yes – and our ears still hurt from all the bad examples of cloying, pretentious, sixties-and-seventies-style progressive rock out there with faux-baroque elements.

Even though Stairway to Heaven is burned-out from being overplayed, hurray for the judge and jury for getting it right this time. I have always preferred Led Zeppelin’s earlier tracks anyway (rather than Stairway and the later ones). The earlier tracks are much grittier, and feature several excellent, bone-chilling, haunted, masterful rip-offs – from songs acknowledged to have been written by original blues legends like Willie Dixon, Howlin’ Wolf and Robert Johnson. Now those songs were worth stealing.

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1. Identify the Parties Being Bound. Believe it or not, this problem occurs regularly even with contracts prepared by experienced people. An artist often will supply services through his or her own loan-out company. Members of a group might not be signing with the label or the manager. Leaving-member riders might be needed, with or without clauses about outside projects. A label identified without its full corporate name, or maybe only by its logo, will attract liabilities to affiliates and distributors.
2. Get the Grant Right. The contract will either be a licence or an assignment of rights. This is probably the most important clause in the agreement. The licence could be non-exclusive which means that no sub-licences can be granted, or exclusive, which means the opposite. An assignment usually is irrevocable unless there is a reversion of rights at a later date. Moral rights will be waived in most circumstances, but a savvy artist will retain rights of consultation and approval. Things to look for are duration, types of uses allowed, geographic territory, and whether the licence is revocable if there is a breach of contract remaining after a cure period.
3. Check the Term. This means not only how long the contract period will be with all options for renewal exercised but also when it starts. There could be a delivery term, an exploitation term and a retention period.
4. Assess the Royalty Streams. There might be a recoupable advance, but what is recoupable and what is not is the key difference between the artist getting paid pretty quick versus being in a long-term commitment in which creativity is smothered by financial desperation. In-house expenses are never recoupable. Everything else is negotiable. Side issues include whether the rate for digital streams and downloads should be something like 50% of net proceeds or 20% of the published price to dealer (PPD) or less. Artists and labels have litigated under pre-digital agreements for the right to have digital sales paid as licences at 50% rather than as record sales at 20% of PPD or less but what can be negotiated today is a moving target, when labels have significant non-recoupable marketing expenses. All contracts should have a so-called “basket clause” so that any use not specifically described will be subject to a royalty; otherwise, there will be ambiguity about whether non-enumerated uses should attract royalties.
5. Determine the Limits of Exclusivity. From a label’s perspective, would you invest in an artist who might pack up and move on? Savvy artists can carve out a Plan B.
6. Lock Down the Publishing. Music publishing is best handled by large publishing companies rather than small-fry independents or, worse yet, small-fry labels or managers. Music publishing is lucrative and when done correctly can open many doors for artists and their labels.
7. Hunt Down Cross-Collateralized and 360-Deal Provisions. This is a ripe area for negotiation, called “hedging your bets” by labels and called “everyone putting their hands in your pockets” by artists. The middle ground is sharing the revenue streams by way of overrides, with the artist keeping control of touring and other non-recording activities.
8. Check the Value Proposition. A plentiful exchange of contractual considerations between the parties speaks of a healthy business relationship. The label should be smart, responsive, hard working, and well connected. The artist should understand personal branding and be able and willing to do social media – and should always be asking for more money and resources. One of the worst things an artist can do is not ask for more. No label should want to sign an artist who is not hungry for commercial success. That’s one of many reasons why it’s called the music business.

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In an effort to get as many subscribers as possible, whether to dominate in terms of market share or to provide an early exit-strategy for insiders, the streaming music services have been gambling with their own sustainability as well as the industry’s because without enough revenue the industry will continue to collapse. They are seen as a legal alternative to rampant piracy along the lines of “better to get control of the distribution channels and collect what we can” rather than letting massive numbers of people share unlicensed free torrents and get nothing.

People have flocked to the music streaming services over the last couple of years largely because they are free – or initially free. Like torrent sites they offer access to millions of tracks, which can become so confusing and overwhelming that it becomes unsatisfying (that is why hits are hits – most people like what they already know or what is placed in front of them like the next bright shiny object). The value of streaming services is that they can offer a curated experience for listening to music. They also can offer the promise of a better experience in the sense that “free” can be incredibly annoying with disabled features and too many audible ads and can give people the feeling of being shut out of a party if the party is only partially revealed.

In terms of free, YouTube is the outlier right now. It is the destination of choice for the majority of listeners who get their music for free. It pays mysteriously-calculated and ridiculously low royalty rates for streams based on the ads that are served beside the stream while seeming to ignore that most people listen to YouTube music on mobile devices through apps where visual ads are irrelevant. This is a glass-half-full at the moment because at least some revenue is better than no revenue but what we have to do is make sure that fully ad-served services like YouTube stay out of the curating game and that upgradable streaming services make their paid offerings distinctly better than free by having them well-curated – in a playful, innovative, informative matter. For the industry to survive, “free” and “curated” music streaming experiences should be like oil and water – not to mix.

Myself, after playing around with music streaming services like Spotify and Deezer for free and comparing them to SiriusXM where I have an inexpensive account I have seen that streaming sites can be immersive and addictive – and if they can annoy and entice enough people who have become hooked on them for free, those people will upgrade from free to paid subscriptions and in the process the industry can become sustainable in the sense that performing artists, composers, labels and publishers can achieve a sufficient amount of revenue to adequately reward their efforts and in doing so perpetuate the creation and distribution of new and satisfying music. This is not just about one site like Spotify being a dominant force. There can be an ecosystem of paid subscription sites. There is room in the market for diversity – for there to be multiple top streaming sites as long as they all have access to full music catalogues.

There is so much misinformation and half-told truth on the topic of music streaming at the moment I decided to write a paper to shed some light on the area – at least, from a legal perspective – 9 Key Points About Music Streaming. It was published last week at the Ontario Bar Association’s half-day continuing legal education program in Toronto where I moderated a panel discussion on music streaming – with Geoff Kulawick, executive director of Canada’s Independent Digital Licensing Agency (Merlin) and Greg Stephens, in-house legal counsel at Street Quality Entertainment in Los Angeles.

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Born in the east end of post-war London in 1947, his parents were Simeon Feld, a truck driver, and Phyllis Feld who operated a fruit stall in the market. His loving parents bought him his first guitar when he was nine; as a young teen he performed with mates from school but was expelled or dropped out by age 15. With immaculate style, arrogance, and a desire to be rich and famous, he had fallen into the mod scene of the early 60s, stealing or hustling motor scooters to pay for his obsession with fashion and clothing. By the mid-60s he had recorded his first music single and made an appearance on “Ready, Steady, Go,” one of the UK’s first pop music television shows, a forerunner of MTV-type programming.

By 1968 Mark Feld had become Marc Bolan. He was making folksy, experimental, hippy music, briefly with a group called “John’s Children” and then with his own psychedelic-folk-rock duo, “Tyrannosaurus Rex”. The group consisted of Bolan sitting cross-legged playing acoustic guitar, with Steve Peregrin Took on bongo drums. His drummer’s name came from J.R.R. Tolkien’s The Lord of the Rings. Much of Bolan’s musical imagery was fantastic, and more than some would have said, drug-induced.

However, BBC Radio One’s influential DJ John Peel championed Tyrannosaurus Rex in their early career, and they caught the attention of American record producer Tony Visconti who had recently moved to London. Visconti would go on to work closely with Bolan, and Bolan’s good friend David Bowie, producing a string of hit recordings for each of them in the 1970s.

Bolan was not yet a pop star when, in October, 1968, on London’s Oxford Street, he signed a one-year music publishing agreement with Essex Music International Limited, with two additional one-year options. In consideration of an advance of £500, the copyright in all of Bolan’s prior songs and any songs written during the contract term were assigned to Essex, subject to the requirement that Essex pay to the artist 70% of all mechanical fees, 70% of all synchronization fees and 50% of the publisher’s share of public performance royalties. Although lacking many clauses seen in modern music publishing contracts such as a basket clause to capture revenues from new technologies, it was not a bad deal by today’s standards for a new artist.

As the 60s drew to a close, and now with Visconti’s finesse in the producer’s booth, Tyrannosaurus Rex went through a metamorphosis becoming T-Rex. With a shorter name, a new lineup, and a tighter, electric sound, Bolan returned to his rock and roll roots as a glam rocker, although at the time his fans referred to his version of glam as “T-Rextacy.” The hits included “Bang a Gong (Get It On)”, “Jeepster,” “Telegram Sam,” “Cosmic Dancer,” “Metal Guru,” and “20th Century Boy.” Bolan now strutted in front of a wall of amplifiers, typically playing a Gibson Les Paul, a Gibson Flying V or a white Fender Stratocaster, wearing a satin outfit, a top hat, a feather boa, sparkles on his cheeks, and platform shoes to give himself an extra lift since he was not particularly tall.

There is no doubt that Marc Bolan earned millions in the 1970s. Where it all went however, has been the subject of considerable debate. Bolan’s life and career as a pop star came to a crashing halt one evening in September, 1977 when the purple Mini 1275 GT driven by his backup singer and fiancée Gloria Jones went off the road less than a mile from the home they shared, killing Bolan instantly and seriously injuring Jones.

Bolan had planned to marry Jones, the mother of his two-year old son Rolan as soon as his divorce from his first wife June Child was finalized. In accordance with UK divorce laws, a “decree nisi” already had been granted. They were waiting for the “decree absolute” to make the divorce official so Bolan could legally remarry. In the weeks before his death, Bolan had met with a new lawyer in London to discuss the changes in his personal life. This was part of larger effort to get his finances back in order after a long period of mismanagement. A new will had been discussed but it had not yet been made. “Marc died very prematurely,” his new lawyer James Ware has said. “In hindsight, that may be, it would have been sensible for a will to have been made in contemplation of his divorce.”

Bolan’s original will still governed. It had been made in 1973 before the birth of Rolan. In the 1973 will there were specific bequests to various people but it made no provision for Rolan who was born out-of-wedlock. It made no matter because there was no money in the estate to pay. Overnight Jones went from living a rock-star lifestyle with Bolan to financial hardship with no income or child support. She returned with Rolan to live in the United States. They had very little to bring with them, especially since fans had looted their home after learning of Bolan’s death. Years later it was revealed that after Bolan’s death, David Bowie was quietly providing for Rolan during his childhood, on behalf of his late friend Marc.

In the 1970s income tax rates in the UK for high-earning individuals were crippling, at 83% being the individual rate, to a top rate on investment income with surcharges of 98%. Following the lead of many other rock stars and performers of the day, Marc Bolan had become a tax exile before he died. The majority of his assets had been placed in an offshore trust, called Wizard (Bahamas) Limited, which later moved to the Cayman Islands.

When Bolan’s family made enquiries to the offshore trust regarding the whereabouts of all Bolan’s “millions” they were stonewalled. The trust was shrouded in secrecy. Bolan’s family called it the “Bermuda Triangle.” However, the UK’s Inland Revenue department (now HM Revenue and Customs) took the view that Bolan’s estate owed a huge income tax bill after Bolan’s death and set about to collect it. Inland Revenue tracked-down the money by applying pressure on Bolan’s ex-wife June Child, who was said to face prosecution in the UK for having been a director of a UK company that had participated in the offshore transfer. The income tax bill ended up being settled in an agreement between Inland Revenue, the offshore trust, and Child – all of which remains confidential to this day. Child died soon after of a heart attack while vacationing in Turkey.

Wizard (Bahamas) denied Rolan from getting any regular payments. The reason given was that under the laws governing the offshore trust, illegitimate children were not recognized as legal heirs. Because Rolan’s mother, Gloria had not been married to Bolan she was said to have no legal status so she was shut out too. Bolan’s producer Tony Visconti also had trouble getting paid royalties by the offshore trust and eventually sued. After a 25-year battle and “seven legal teams,” Visconti resolved his dispute with the trust, and this in turn cleared the way for a settlement between the trust and Rolan, who is now said to receive a “controlled” yearly allowance from the trust fund.

As with many top-selling music artists, Marc Bolan had a team of professionals making decisions for him. When he died prematurely, his team was left with inadequate instructions that most likely did not reflect his wishes. As the money from his musical legacy continued to pour into the offshore trust and to seemingly disappear, this created an appearance of impropriety – that his estate was being milked by accountants, lawyers and bankers. The true facts remain confidential, but the appearances were less than flattering. Rolan is still trying to untangle the remainder of the financial mess that was left behind after his father’s untimely death.

The most recent effort by Rolan to reclaim his father’s legacy has been a lawsuit commenced in July, 2013 in the United States District Court, Central District of California, Rolan Seymour Feld v. Westminster Music Limited and Essex Music International, Inc. Rolan is represented by Robert E. Allen, former senior counsel at Universal Music Publishing Group and PolyGram Music Publishing Group, and now a member of the Los Angeles-based law firm Gradstein & Marzano, P.C.

The 2013 suit explores emerging area of copyright law grappling with reversionary rights under U.S. copyright legislation. Canada does not have similar statutory provisions, regarding the possibility of reversion after an initial term of copyright has expired, but the implications nonetheless are profound. Since U.S. and international laws are so closely aligned in the entertainment business, it remains to be seen what kind of impact the result of the 2013 suit could have for copyright ownership agreements signed outside the U.S.

Even if the legal results of the current Rolan Feld suit are corralled entirely within the territory of the U.S. and do not have any extra-territorial effect, the practical results still could be felt if U.S. music publishing rights are to be carved-out of international deals by the U.S. courts. Moreover, on the facts of the Rolan Feld case, where an English contract is being made the subject of U.S. copyright reversion claims, the door may become opened for persons interested in copyrights originating from countries outside the U.S. to launch reversion suits in the U.S. for the purpose of taking over the U.S. market for the works. Potential defences by U.S. copyright proprietors against non-U.S. plaintiffs might include lack of jurisdiction and forum-shopping but in the current suit Rolan clearly is a U.S. resident seeking to avail himself of U.S. remedies.

Specifically, Rolan claims that under the 1978 United States Copyright Act, the copyrights in the works governed by the music publishing agreement signed with Essex Music International in 1968 – a contract made under the laws of England -reverted to Marc Bolan’s sole heir Rolan automatically upon the expiry of the first term of the copyright, which at the time was 28 years. The suit alleges that under prior holdings in Stewart v. Abend (1990) and Miller Music Corp. v. Charles N. Daniels, Inc. (1960), a grant by an author of the renewed and extended term of a further 67 years (for a total of 95) is a “contingent” interest only, and a party receiving such interest has an “expectancy” interest only, whereby if the author dies during the initial term the copyright vests automatically in the author’s statutory heirs. The Copyright Act is cited as confirmation that there would be no need for a registration of that reversion.

The policy behind the U.S. legislation was to assist the heirs of composers to reclaim their financial legacy in situations where the composer died prematurely. On its face the suit alleges that U.S. copyright legislation would govern the outcome of the same issue in other countries; i.e. that Essex would lose its copyrights globally, depending on the outcome of the U.S. suit.

The Rolan Feld suit echoes other copyright reversion issues currently pending or recently decided in the U.S. courts in situations where the copyright originally had been assigned, not created as a work-for-hire; for example, Scorpio Music (Black Scorpio) S.A. and Can’t Stop Productions, Inc. v. Victor Willis (2012), where Scorpio tried and failed to stop Willis, an original member of The Village People, from exercising a 35-year reversion of his rights to songs such as “YMCA.”

Westminster and Essex have strenuously defended the Rolan Bolan suit. They base their defence largely on the notion that the claim is statute-barred because of the 3-year limitation for bringing actions under the Copyright Act. They allege that the original 28-year copyright term of the compositions at issue in the litigation expired, at the latest, in 2000 – thirteen years earlier than the commencement of the suit. They also allege the equitable defence of laches. They say that they have devoted substantial money, time and resources toward the continued promotion, exploitation and administration of the compositions and thereby would suffer prejudice as a result of Rolan Feld’s delay in bringing the suit. They say that their association with these copyrights always has been a matter of public record and that during the entire duration of the renewal period, Rolan obviously was aware that he was not receiving royalties directly. They say they dutifully and properly paid royalties solely to the estate of Marc Bolan, pursuant to long-standing contractual obligations. These are the same contractual obligations that the family has been trying to untangle since the time of Bolan’s death.

In the 2013 copyright reversion suit commenced by Rolan Feld in the U.S, it is paradoxical that after all these years since his father’s death, the main defence to his effort to reclaim his legacy might be that he has waited too long.

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Keef’s fame began on YouTube. His first album, “Finally Rich,” was released in December, 2012, on Interscope Records (Universal Music Group). It’s a three album, $6 million deal. Interscope has given Keef a label deal too (Glory Boyz). We know that, because the contract was filed in court, because he is a minor. The contract is said to be subject to cancellation however if Keef does not sell 250,000 albums by December, 2013. His manager says that will not be a problem.

Do some record companies feed off violence? Interscope has come under a lot of criticism for signing Chief Keef. A good example is from outspoken Chicago rapper Rhymefest, who placed blame on the label and its management for putting profits ahead of social responsibility:

“Prison is a $55 billion a year industry. Prison makes more money than rap music makes, every year. Private prisons are being traded on the stock market. If they’re going to advertise, how are they going to do it? How are they going to put more people in prison and advertise? It’s through the record labels that they own. Look at Interscope Records. Interscope Records is owned by General Electric. General Electric has a huge stock and share in private prisons. It’s so basic for people to say I’m dissing Chief Keef. I ain’t dissing Chief Keef, I’m dissing [Interscope CEO] Jimmy Iovine. Think about it. The East Coast, West Coast beef, who was behind it all? Interscope Records. Death Row. Now, violence in Chicago is the new hot sh*t. Who gave the biggest deal? Interscope Records. At what point are we going to say, “D*mn. We’re letting this motherf*cker mess up my hood.”

There was a bidding war among companies wanting to sign-up Keef. If Interscope had not signed him, someone else would. The court date for the approval of the Interscope contract is coming up in April, 2013. No doubt the court by then will have heard argument on the best interests of the minor, and whether his money is safe. What I hope is added to the mix that day, is whether his life is safe too, and not just being exploited to sell records based on a suburban thirst for teen murder culture. What I know is that you don’t sell 250,000 albums to the inner city. You sell them to the suburbs.

Some of the most poignant comments have come from the very people around him. Rapper Waka Flocka Flame is quoted as having encouraging people to give Chief Keef a break. “That’s a kid at the end of the day, you know what I mean…Instead of judging the kid and just bashing down, why not reach your arm out and help him?”

I coud provide footnotes, but you can easily check this all this yourself by doing a search online. Depending on how you look at it, Chief Keef is a folk hero, another dumb kid, an opportunist, or a willing victim. He is a youth soldier in a rap war that rewards very few with immense profits, and leaves most everyone else to deal with the collateral damage. Is this right? No, it is not. We do not need legislation, or finger wagging. Simply put, we need better role models.

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