KISS High-end Life Insurance?

The Wall Street Journal is reporting that Gene Simmons has finally gotten into the insurance business. Gene Simmons, as you may know, is the lead singer of the rock group KISS. He has been exploring new and exciting ways to slap the KISS logo on any and all products for the last three decades. At this point, his marketing and merchandising efforts have long since jumped the shark. I could come up with something witty, but that would just be a waste of time. Honestly, I’m curious why it took him so long to finally get involved in this market.

Mr. Simmons’s new group, Cool Springs Life Equity Strategy, was launched last month to tap into a lucrative demographic: entertainers, sports stars and other people with a net worth of $20 million or more who need a life-insurance policy of $10 million or greater. The firm’s founders, who include David R. Carpenter, formerly of insurance powerhouse Transamerica, believe there is big opportunity to sell jumbo insurance policies to rich people.

Yes, undoubtedly there is.

“I’ve been in the business my whole career, and life-insurance executives do not have audiences,” adds Mr. Carpenter, the Transamerica veteran. “Gene has audiences. Gene has the reputation [as] a genius merchandiser and marketer. He has great ways of conceptualizing products.”

So, slapping “KISS” on anything nearby, regardless of quality, equates with genius merchandiser? While the KISS army might be dumb enough to buy any stupid thing you sell, people in the market for this amount of insurance are probably not going to be fooled by the whizz-bang feature of having Gene Simmons on the label. Failing that, their lawyers should stop them from succumbing to Gene’s hypnotic advertising powers.

But Gene would never lead you astray, would he?

Some advisers and estate-planning attorneys (Including this one-ed.) aren’t enthusiastic about the notion of borrowing money to pay insurance premiums under any circumstances. They say borrowing costs can run higher than the buyer expects, or the arrangements can run into other problems, such as a bank tightening its collateral requirements. One of the biggest concerns is that borrowing programs presume that savings within the policy will earn more than the interest on the loan—but if interest rates spike sharply, the borrowing costs could jump ahead of interest earnings.

Thankfully, the Journal was good enough to find a lawyer to talk about this so I don’t have to.

“Tell me when Alice Cooper comes out with one”

Um, yeah. What he said.

Religion and the Law

Last month, Nergal found himself in a lot of trouble with Polish authorities because he destroyed a Bible on stage in 2007. Poland has a law that prohibits the offending of someone’s religious feelings, and he managed to offend several people. Could a law like this be passed in the United States?

The quick answer is no, though there are, as always, some exceptions. At the most basic level, the First Amendment keeps the government out of religion as well as the regulating-speech business. There is a plethora of diverse beliefs about the ultimate nature of the universe, and the US government is not going to get in your way if you choose to believe in any one of them. Essentially, you can believe any crazy thing you wish, but you may not be able to practice your religion if it involves breaking a law that is not related to your religious beliefs.

Religious freedoms are protected by two separate clauses in the First Amendment. The first, the Establishment Clause, prevents the government from establishing a national religion and promoting one religion over another. The Free Exercise Clause protects you in your religious beliefs, though it won’t prevent the government from prohibiting certain acts.

The Establishment Clause (“Congress shall make no law respecting an establishment of religion”) was the Framers’ way of preventing religious warfare by keeping the government out of religion, which had been a problem for European governments. Under the Establishment Clause, laws will be Constitutional if there is a non-religious reason for the law, the effect of the law must be neither to advance nor inhibit religion, and there must not be excessive entanglement with religion. Justice Hugo Black once wrote that it is no part of our government to be creating and writing prayers. In effect, it prevents [religious fanatics of one sect] from using the power of government to domesticate the [godless pagans of another sect] who didn’t have the sense to go to believe as they do.

As an example, just about any government-sponsored religious activity in public schools is unconstitutional. This has been used not only to prevent student-lead prayers to start the school day, but also prayers that are voluntary or at football games. Based on what we’ve learned from Varsity Blues and Friday Night Lights, some of you may rightly claim that high school football in Texas is 1) not voluntary, and 2) a quasi-religious function sponsored by the government, but that is a different discussion. While the government cannot support one religion by allowing prayers, it must allow religious groups access to facilities on the same terms as non-religious groups.

What about religious monuments? The Ten Commandments are fairly important to a number of religions, but does that mean that they can be placed on public grounds? The answer is a definitive maybe, and on first blush it depends upon where you are. In 2005, two cases about the placement of the Ten Commandments were decided by the Supreme Court. Their display in Kentucky courthouses was found to violate the Constitution, while the Texas Capitol did not. The Court held that Texas could have the display because it had been on the grounds for over forty years, that it had been donated by a non-religious group, and it was part of a larger display of the moral principals underlying the legal system.

The First Amendment continues into the Free Exercise clause (“or prohibiting the free exercise thereof”), which protects you in your religious beliefs. This allows you to believe any crazy thing that you please without any interference from the government. The important distinction is that while you can believe anything you want in the practice of your religion, it does not allow you to challenge a neutral law of general applicability. As long as the law is passed without a view to attacking a particular religion, but for the wider community, it will pass this test.

While it is all well and good for you to believe that you need to drink and drive as a necessary part of the exercise of your religious beliefs, you step outside of your First Amendment protections when you start acting on that belief. On the other hand, if the local government was not too fond of your sect and its Tuesday-night-apple-pie-baking-party heresies and passed a law banning them, that would not pass Constitutional muster.

There is a lot that I still have not discussed regarding the protections of the First Amendment, and I’ll be coming back to this in future posts. Next time, we’ll get into naming your band and what protections you have in your name.

Ozzy & Judas Priest on Trial Part Two: The First Amendment and Free Speech

Last week, Ozzy & Judas Priest were on trial for spreading suicide-inducing messages in their music. How then were they able to escape liability for their actions? For simplicity, I’ll only refer to Ozzy’s trial. (For those of you interested in reading the full opinion, it can be found at McCollum v. CBS, Inc., 202 Cal. App. 3d 989. )

The court in Ozzy’s case rejected the McCollums’ claim on two different grounds. First, the First Amendment provided an absolute bar to the claim. Second, even if the McCollums could have gotten past the First Amendment bar, they could not have proven the foreseeability element of their negligence claim.

The First Amendment is a pretty amazing thing. In case you forgot what it says, here it is:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Rather than trying to have the government control what could and could not be said, they washed their hands of the whole mess by granting free speech to all. Until that time, England had only protected freedom of speech for Parliamentary debates, and France had recently enacted legislation similar to our First Amendment. I don’t know all of the history here, so if you do, please edify the rest of us in the comments.

Essentially, the Founders thought that exposing the people to more speech was preferable to not having the ability to speak freely, even if that speech was bad, wrong, deceitful, obscene, or whatever other reason you might think of to decry it. Rather than thinking that you, the great unwashed masses, might be to thin-skulled or soft-brained to deal with potentially dangerous ideas, they took the position that exposure to varying forms of speech would toughen you up. Sure, this means that you will get to hear the speech that you like and with which you agree. It also means that you will hear speech that you don’t like or agree with. If you don’t like it or if you are offended by it, the First Amendment prevents you from using the government to stop that speech.

Now, this means that [noble, civic-minded group you like] can inform the public about [perfectly sensible proposal to which all right-thinking people would subscribe]. It also means that [group of mouth-breathing troglodytes that you don’t like] can tell the public about [vile proposal that no self-respecting adult would acknowledge in public, and most likely results in any adherents ultimately subscribing to a solitary lifetime of baby-eating and derision], and you cannot use the government to stop them. At all.

Does it mean that you can’t use other methods to prevent their message from spreading? No. If you own a newspaper, radio station, blog, or other means of communication, then you are not required to give persons with whom you do not agree space to spread their [hate-fueled, baby-eating] message.

Enough of the soapbox, let’s get back to the case. The court held that the First Amendment prevented the government from restricting free speech, no matter what the subject matter, premise, ideology, purpose, or method of delivery. Going further, the court held that this not only protected the right of the artist to produce any message, it also protected the right of the listener to hear that message. Essentially, there should be no impediment imposed by the government between a speaker and the public.

So, we all know that you can say basically anything you want, right? No, there limits to free speech.

Wait, what?

The court recognized four limited exceptions to the First Amendment: 1, obscene speech; 2, “libel, slander, misrepresentation, obscenity, perjury, false advertising, [and] solicitation of crime;” 3, “speech used as an integral part of conduct in violation of a valid criminal statute;” and 4, speech directed as inciting imminent lawless action.

In this case, only the last category was important. In Brandenburg v. Ohio, the Supreme Court held that there is no First Amendment protection if the speech both advocates imminent illegal behavior and also is likely to result in such illegal behavior. The Supreme Court has heard many cases since Brandenburg, and this test is very hard to meet.

The court held that incitement at some indeterminate time in the future will not satisfy the imminency requirement. How can Ozzy incite someone to imminent lawless action if he isn’t present when McCollum listens to the album, doesn’t know when the album will be heard, and doesn’t even know that McCollum will be incited to commit suicide? The court declined to hold recordings to the same standard of live speech because recording and distribution process was so prolonged.

The court also held that the McCollum’s claim failed because they could not prove the foreseeability element of negligence. The court would have needed a high degree of foreseeability to find liability because the burdens imposed upon artists by restricting free speech. Such a burden would reduce artistic expression in all forms because some people might be adversely affected by the content. This goes back to the underlying reasoning for First Amendment protection: we are better off having more speech than less speech.

What is going on with Negral?

Poland apparently believes that protecting religion from any sort of insulting conduct is more important than people having the right of free speech. The First Amendment gets the government out of the religion business as well as the regulating-speech business. There is a lot of law dealing with what you can do in the course of practicing whatever you might call your religion, and it boils down to the idea that you can believe any crazy thing you wish, but you may not be able to practice your religion if it involves breaking the law.

It is a travesty that a modern state in the West would have such a law. Negral is claiming that artistic expression should allow him to burn the Bible. Frankly, I think he should be able to burn any copy of any text, religious or not, that suits him without the state getting in the way.

There is a lot more to this, and I’ll get into why this law would be unconstitutional in the US next week.

Ozzy & Judas Priest on Trial

On October 26, 1984, John McCollum killed himself after having listened to Ozzy Osbourne’s Blizzard of Ozz, Diary of a Madman, and Speak of the Devil. While listening to Speak of the Devil, McCollum put a gun to his temple and killed himself. Two years later, his parents filed suit in California against Ozzy and his label, CBS Records. His parents claimed that Ozzy’s music, in particular the lyrics from “Suicide Solution” on Blizzard of Ozz, caused their son to commit suicide.

Judas Priest was involved in a similar trial in 1990. On December 23, 1985, James Vance and Raymond Belknap shot themselves after allegedly listening Judas Priest. While Belknap died instantly, Vance survived for three years before finally succumbing to his injuries. Their parents alleged that subliminal messages placed in “Better By You, Better Than Me” were responsible for their sons’ actions.

In both cases, families filed suit against the bands because their music had the effect of pushing their sons over the edge, resulting in the deaths of the three young men. The various causes of action brought in both cases were based on the notion that the music of both bands was negligently produced, and that the music encouraged the self-destructive behavior that resulted in the three suicides.

Over the years, many bands have been sued for various conduct on the premise that they should have known what they were doing. As I mentioned last week, negligence is a broad category of tort law that attempts to compensate victims for harms resulting from a lack of care that should be followed by other parties. Essentially, negligence allows victims to be compensated because the tortfeasor, or the party liable for damages, should have known better. That the tortfeasor did not intentionally cause the harm does not matter. Their conduct resulted in the harm of others, and that because of that conduct they should have to pay for the damages associated with that conduct.

So, what is negligence? Negligent activity is any action that falls below the standard of care to which a reasonable person would conform to prevent injury to others from foreseeable risks of harm. Within that rough definition are four elements to a claim of negligence.

The first element, and the issue central to both cases, is that there must be a duty to exercise a reasonable standard of care. As a member of society, you have a legally-imposed duty of care to act in a manner that prevents foreseeable harm to others. As a result of our federal system, every state will have its own set of case law that defines duty, one of which is foreseeability. Under the foreseeability test, the damages must have been reasonably foreseeable by the tortfeasor. Was it reasonably foreseeable to Ozzy and Judas Priest when they recorded their respective albums that someone would kill themselves as a result of listening to their music? If yes, then they should be liable for any damages. If not, then there is no liability.

Second, the tortfeasor’s actions must have breached the applicable standard of care. This involves comparing the tortfeasor’s actions to the standard of care that would be exercised by a reasonable person in the same situation. The tricky part of standard of care is that it will vary depending upon who you are and the situation. As an example, imagine you find a person who has been hit by a car. If you attempt to help them, what standard would apply? If you have no medical experience training, there will be a different standard of care than if you were a doctor who worked primarily in an emergency room. Similarly, a child will be held to the standard of care of a child in a similar situation, a person with physical disability will be held to the standard of care of a similarly disabled person, and so on.

Third, the conduct must be sufficiently related to the injury to be the proximate cause of the injury. Again thanks to the federal system, different states will have different definitions for the amounts of causation needed to establish liability. For example, if you start a fire in your yard, and the house next door burns down, should that be included in your damages? What if the second house down catches fire? What if an ember is caught in the wind and starts a fire two miles away? At what point should your liability be cut off because circumstances collided and produced an event that could not have been foreseen? The “but for” test is commonly used to determine causation, structured as “but for the actions of the tortfeasor, the harm would not have occurred.” For Ozzy’s trial, it would have been “but for the actions of Ozzy in producing and distributing his music, McCollum would not have shot himself.”

Fourth and finally, there must be an actual injury to the victim as a result of the conduct. Damages can include physical injuries, damages to property, economic damages, and lost wages. If the conduct merely threatens the victim, but does not cause any actual harm, then there cannot be a claim for negligence.

So, if the parents could have proven all four of these elements, they would have prevailed against the bands. Next week, I’ll explain the legal basis of how Ozzy & Judas Priest escaped liability.

The Law of Metalocalypse

The Law of Metalocalypse

Season 1, Episode 1 “The Curse of Dethklok”

In what will be a continuing feature of this column, I am going to watch episodes of Metalocalypse and analyze any of the issues that come up. Some episodes have more issues than others, so I might not get through all of the issues in an episode in a given post. Really, I just want to be able to say that watching Metalocalypse is productive work for me.

In the first episode, Dethklok requires that fans sign “pain waivers” to release the band from liability at the Duncan Hills Coffee Jingle Batsfjord MassacreFest. Obviously thinking ahead of what can and will happen at their shows, it seems like a good plan for Dethklok, as the show results in fans being crushed, burned, dissolved, or otherwise maimed or killed. Can a waiver really allow Dethklok to escape liability for the deaths of hundreds of fans?

Yes, I know they are in Norway, and the laws there are different. I’m basing this on US law because I don’t have the time to learn Norwegian law. I’m sure you understand.

It is possible to get around potentially negligent conduct with the use of a waiver. Why would you want one? As with most things lawyers do, somebody is looking to get out of liability for potentially dangerous conduct. Basically, you want to insulate yourself from liability for negligent conduct.

Negligence is a branch of tort law that deals with parties that disregard a standard of care that results in damages. Negligent activity is any action that falls below the standard of care to which a reasonable person would conform to prevent injury to others from foreseeable risks of harm. If you start start firing a gun in to the air, this is negligent activity because you should know that those bullets are going to come down and could hurt someone. Negligence is concerned with stopping activity you should know is dangerous.

For a waiver to be valid to prevent liability for negligent conduct, it will have to be clear and unambiguous about the potential risks. It would not be valid if it just said that dangerous things might happen, and that you as the participant will have to be aware of these unnamed risks. Such a clause is not allowed because people need to know exactly what they are agreeing to, and by not telling them the potential risks, they cannot competently waive their rights. By spelling out the exact dangers, you can have a valid waiver.

For example, if you are on an African safari, there is a chance you might get eaten by a tiger. It’s not the organizer’s fault, but it might happen. By explaining up front that tigers are roaming about and you might get eaten, the organizer will be able to escape liability for tiger attacks. For Dethklok, requiring a signed waiver acknowledges that there is going to be an activity that might result in harm to some people that is beyond their control. It is possible that somebody will get hurt in the pit, and Dethklok can’t be responsible for that.

The problem here is that the activities giving rise to suits against Dethklok from the Batsfjord Murder MassacreFest were all voluntary. Dethklok knew or should have known that pouring boiling coffee (or whatever that might have been) would result in injury, which it clearly did. So, even if they didn’t intend to injure others, they could still be held liable for conduct. It is not possible for Dethklok to rationally argue that they did not intend to have this conduct occur. They klokateers were on the stage dumping coffee on the fans, and that won’t be covered by waivers. That conduct is intentional, and not negligent.

I’ve talked about consent a few weeks ago, and that can prevent liability. Would that be applicable here? While you can consent to conduct, an agreement that spells things out beforehand would clear up any misconceptions. Even though there is consent here in the form of a signed waiver, though you can’t cover everything. Courts have been able to overturn consent on public policy grounds if the conduct is destructive to society. For the same reason that you cannot consent to somebody murdering you, you cannot consent to somebody dumping hot coffee on you if it will kill you.

So, Dethklok couldn’t get away with all of this through the use of a waiver.

Quick Answer from the Mailbag

You know those screaming videos that have a ugly picture with a loud scream in the middle of the video? What if someone intentionally sends the video knowing it will disturb the viewer? What if the viewer gets a heart attack from watching it?

The First Amendment generally protects speech that is offensive or disturbing. You have the right to say what you want, even if someone else does not like it. I’ll cover this in more detail in a future post.

There is potential liability for intentional infliction of emotional distress; however, this is a high bar to pass. To be able to recover, you need to have actual bodily harm that results from the conduct. If the person is just upset or scared, but has no real injuries, then generally there is no recovery. Further, mere words are not enough. The action that gives rise to the injury should be something that the average person would consider far outside of the bounds. If the sender knew that it would have this effect on the viewer, that would change things.

Why Axl = Guns N’Roses

In the last few weeks, several of you have emailed the same basic question:

“How is Guns N’Roses still around if Axl is the only one left?”

While I can’t tell you definitively, here’s how it might have happened. Sometime shortly before they were signed, the band got together because Geffen wanted them to have a band agreement to facilitate their dealing with the band. Having the band agreement would assure Geffen of a somewhat functional relationship with the band as a whole by regulating how it operated internally. In the course of writing this agreement, the band decided that if somebody left the band, either voluntarily or not, they were not allowed to perform in any capacity under the name “Guns N’Roses” unless they rejoined the band. Perhaps another term stated that no non-original member would ever be allowed to use “Guns N’Roses.” It would set up a last man standing situation, granting the name to whomever lasted the longest. As the years passed by, members dropped out, leaving Axl by himself, and in control of the name.

You can rewrite that story in any number of ways to feature any manner of duplicitous conduct by Axl with the ultimate that result that he has control of the “Guns N’Roses.” Or maybe they all agreed that because he was the lead singer and his name was half of the band’s name, he should always have the rights to the name. Or maybe a fairy provided the band with magical pixie dust that was so great that they really didn’t know, much less care, what they were signing. Maybe that pixie dust was called heroin. We may never know. [Slash has claimed that he and Duff were made to sign away the name by Axl at some point during the Use Your Illusion touring cycle, as Axl refused to go on-stage until said agreement was signed; but as this would essentially render any contract null and void, Rose’s claim that he always owned the named Guns N’ Roses seems a much more likely explanation. -MetalSucks Ed.]

At this point, it really does not matter what happened. We know that Axl has the right to use GNR and nobody else does simply because Slash, Duff, Izzy, & Steven have not tried to stop him from doing so. In the absence of some agreement among the members, each of the would have some claim to the name.

The point of this story is that a band agreement is very important, and can have serious implications for your band down the line. There are many reasons for having a band agreement, even if you don’t think your band is going anywhere.

“Great,” you say, “I’ll remember that when Relapse, Century, or Metal Blade gets its act together and gives my band a record deal.” While you might be just moments from breaking through and getting the sweet record deal that will launch you into the dizzying heights of sub-sub-sub genre notoriety, it won’t matter if everything falls apart because of a band fight over what people thought the deal was. So, you can wait around until then to get yours together, or you can handle this now before something happens and tears your band apart.

A band agreement is a contract between the members of the band. Contracts are used to help parties plan for future events by ensuring that their expectations as a result of a bargain are protected. Contracts provide a legal framework for parties to predictably order their affairs.

There are many benefits to taking to the time to write a band agreement, and I’ll give you two. First, you will have your agreement written down, which makes it much harder for people later on to “remember” a different agreement. It’s much harder to be confused about the terms of an agreement when it is spelled out in black and white and everybody’s name is signed at the end. You can think of the band agreement as cheap insurance against future memory loss.

Second, your band will have to sit down and talk about a variety of issues in the process of writing the agreement. As you talk through various issues, other issues might come up that nobody had considered. It will be much easier to discuss potentially troubling issues when nothing is on the line rather than waiting for something to happen later. There will not be a surprise in the form of “I’m not going on tour,” “I don’t want to sign a record deal,” or “my girlfriend has some suggestions for the band.” Even if you are not all on the same page, you can neutralize potential situations long before they actually occur.

Or, you could just trust that everything will turn out for the best because you are all bros and nothing every goes wrong between bros. Good luck with that.

Because a contract is voluntary, you can define all of its terms before you sign it. No two situations are alike, so I’m not going to pretend to tell you what your band should or should not do. Instead, I’m going to provide you with some questions that will get you started in making your agreement.

* Who is a member of the band? This is usually straightforward, but if you have additional musicians who play with you it might not be so clear. If you have seen Mastodon play in the last year, you know that there are now five guys on stage instead of four for at least part of the show. Does playing with the band make you a member?

* How will band decisions be made? Majority or unanimous decision? What happens if there is a tie?

* What are band members expected to do? For most metal bands, that might mean showing up, playing, drinking heavily, and leaving. Are band members required to have a certain look? Is it going to be a problem for your black metal band if the bassist displays his love of ye olde indie music by wearing a Decemberists’ shirts at shows?

* Is there anything that band members are not allowed to do? If you’re a straight-edge band, you probably don’t want anyone drinking ever. Similarly, if you are in a thrash band, you’re going to at least think about requiring everyone to drink constantly, if not more often.

* What about band practice? Are you going to require that people show up for practice? If know someone is not going to show up for practice regularly, you can be playing with fire by adding this term. By putting this in the agreement, you must be ready to stand behind it. Sure, it might cause him to change his ways if he knows that he could be fired for not showing up. But if Sluggy McLaterson doesn’t show up, are you ready and willing to fire him?

* How will the profits be split? Will debts to band members be repaid before anyone else sees any money? How about expenses? If the band agrees to spend $400 on merchandise, but only one member pays for it, how does he get repaid?

* How will you amend the band agreement if circumstances change?

* How will things end? In all likelihood, your band will eventually split up. It may just mean that someone leaves, or it may mean that everybody goes their separate ways. How do you fire someone from the band? If someone leaves voluntarily, who gets to keep the name of the band? * Who gets to keep the rights to the songs you have written together?

These questions are just a starting point. You know the situations facing your band better than anyone else, so as a band you need to figure out the best solutions for yourself. By taking the time to sort out the various issues facing your band before emotions flare up, you can spend more time on being a band.

Quick answer from the mailbag:
“I run a popular metalmedical blog, and I frequently get headache because the comments are so infuriatingly stupid. Can I sue them?” -Dr. Axl Rosenrosen.

Don’t expect to win. While intentional infliction of emotional distress is a recognized tort, the occasional idiocy of commenters is not likely to be egregious enough to qualify. Mere words are usually not enough to substantiate a claim. Also, headaches aren’t really that big of a deal. Sorry, you’ll have to write it off as an occupational hazard.

Next week: The Law of Metalocalypse!

Into the Pit

The Law of the Pit

Like nearly everyone else on this site, I have spent my share of time at shows, both in and out of the pit. How is it that people can come together in a cramped club, run into each other, and stagedive onto one another, but manage to not get sued for any of it? Why are pits and their associated conduct considered acceptable at shows, but not on the subway?

On an intuitive level, you probably already know that while this is accepted at the show, you won’t get away with the same conduct elsewhere. If someone you did not know intentionally ran into you while you were waiting for the elevator, you would rightfully be upset about it. In the context of a show, the same conduct is not only acceptable, but many times encouraged.

Our legal system allows people to recover for injuries through tort law. Tort law is defined as any civil (as opposed to criminal) action (court case) for damages (money usually, but other relief is available) that is not based on contract law (I’ll get into contract law next week). Tort law recognizes that a person is liable for the results of his actions, even if those actions are legal. It allows people to recover for injuries that were not foreseen and caused by somebody else. Because you did not have a contract, which will provide a method for calculating damages, it is left to the courts to determine the amount of damages.

In this case, if you were going to sue, your cause of action would be battery: an intentional act to cause a harmful or offensive touching to another person. Battery is an intentional tort, which is any act where the person committing the tort, also known as the tortfeasor, intends the conduct that results. Here, intent does not mean that the tortfeasor necessarily intended to hurt the victim. Instead, it means that the tortfeasor intended the conduct that resulted in the harm. You are fully within your rights to practice your windmills, gorillas, lawnmowers, and karate kicks, but if you hit someone, then you may be liable for that conduct.

Ok, that’s fine and dandy, we have a basic cause of action in battery. I’m in the pit, and I didn’t want that sweaty dude covered in tattoos and b.o. getting anywhere near me. He somehow didn’t get the memo, intentionally ran around in the pit, hit me, and I think that was harmful or offensive. Can I sue him for running into me?

Not so fast. While the law gives with one hand, it also takes away with the other. In this case, it is going to take away your right to sue if you have consented to the conduct.

Consent is a defense against tort liability that is available where it can be shown that the tortfeasor acted with the victim’s consent or permission. The tortfeasor admits to committing the tort, but claims that he is not liable because the victim expressed a willingness that the event occur. This could be as simple as saying “I consent to your running into me,” but that is unlikely at best. You could sign a waiver, but who carries those around? As a result, the law recognizes that consent can be expressed in many forms, including words, deeds, writing, or implied. A failure to object to customary conduct can be considered consent as well.

Implied consent will be the relevant form of consent for a show. You have agreed to a certain amount of contact based on your conduct, though this can be exceeded by going beyond what is permitted. With a large group of people that don’t know each other, they must base their conduct on what will be considered acceptable for the group. On one end of the spectrum, there will be some people will stand at the back and barely move. On the other, there are those that will spend all night in the pit. As you move through the venue, the amount of contact that you have impliedly consented to will vary. Some of their conduct will be within the realm of implied consent, and some will exceed the implied consent. If you come to this site regularly, you probably already know what the general rules are for behaving yourself while you are in the pit. If you don’t, a good recap can be found here.

If you are standing in the back of the venue, you have not consented to much contact that you would not be subject to outside of the venue. If the venue is crowded, you should expect to people to have to squeeze by you trying to get to the front. Occasionally, you might have some who has had too much to drink walk into you. As you are in a venue that sells alcohol, it should come as no surprise that someone will have too much and stumble into you. If they puke on your jeans, that would probably exceed your implied consent. Similarly, you have not consented to someone starting a pit in the back of the venue, or diving off the soundboard into a group that is facing the stage.

If you decide to move closer to the stage, and are now standing near edge of the pit, you have impliedly consented to what you should expect to happen there. You should expect that people are going to run into you. You should expect that drinks might get spilled on you. People will be pushing past you to get into the pit. On the other hand, you should not expect that people in the pit are going to aim for you while they are moshing and you are not. Yes, they might end up on you, but it would be as a result of a collision in the pit.

If you jump into the pit, you have further increased the conduct to which you have consented. When entering the pit, you expect that there will be rough contact, and that you might end up on the floor. You should expect that people are going to run into you, and that people might hit you from behind after hitting other people. If you fall down, you expect that people will help you up, or at least avoid you until you get back to your feet. However, even in this situation, it does not mean that you have consented to all conduct. Your implied consent could still be exceeded if someone intentionally hits you from the back. Similarly, while pushing each other is expected, hitting or kicking would exceed the consent.

The level of consent changes with the nature of the activity, and the people present. What is acceptable for one situation may be inappropriate for others, even with the same group of people. The law generally doesn’t require that you keep a running tab on what is permitted conduct within a group, but expects you to behave appropriately for the situation.

A quick answer to question from the mailbag: Can you explain the differences between copyrights, patents, and trademarks?

As I discussed last week, copyright protects original works of authorship. A large part of music law is centered around copyright law.

Trademarks are used by individuals and businesses to indicate to consumers that a product comes from a certain source. Trademarks are generally words, phrases, logos, or other item that identifies a product in the marketplace. Some examples would be Microsoft, Mattel, and the shape of a Coca-Cola bottle. There are some trademark implications in music law, and I’ll get to it in April.

Patents protect inventions and functional developments. Patent holders are required to disclose how their invention works, and in return, they are granted a monopoly over the production of that invention for a period of 21 years. Generally, there is not much crossover between patent law and entertainment law.

Next week: something your band probably hasn’t done yet, but should be thinking about anyway.

Copyright Introduction Part 2: Basic Requirements

After last week’s introduction, I’m going to use this column to go through the the three main requirements copyright protection in a little more detail.  For those of you looking ahead, the next few columns will have nothing to do with copyright at all.

Requirement number one is that the work must be an item that can be copyrightable.  Though there are many different types of works, not everything can receive copyright protection.  Copyright will only be available to original works of authorship.  The US Code provides several examples of items that can be protected, such as
-Literary Works (books, articles, class notes, emails)
-Pictorial, Graphic & Sculptural works (Photographs, music videos, movies)
-Musical works & sound recordings (full albums, individual songs)

Also, while facts are also not copyrightable, compilations of facts generally are, but only to the extent that the author has infused it with his creativity.  Where his creativity ends, so, too, does the copyright.

While this list is broad, many items are not protected, such as procedures, processes, systems, ideas, words or short phrases, and US government works. Protection might be available under trademark or patent law for these, but not under copyright.

Requirement number two is that each item must be independently created. If two people author the same work and have arrived at that work independently, both will be  afforded copyright protection for their work.  Granted, this doesn’t happen that often.

The independent creation requirement leaves out several concepts that you might consider important to receiving copyright protection, such as:

-Novelty — You can effectively copy something if you arrived at it independently.  This is to protect authors who have created the same thing.  If, somehow, somebody who had never heard Reign in Blood, and then wrote and produced it for themselves, they would have protection for that work.  Now, would it be commercially viable? Probably not, and the copyright protection would be of limited value here, but it would be protected nonetheless.

-Artistic Measure — This protection is granted no matter what the underlying artistic measure.  Why? It is much easier to grant protection to all works rather than having some stodgy old judge unrelated to any artistic scene trying to determine what “art” is.  So, sadly, Brokencyde can still have copyright protection for anything they dump on the market.

-Noncommercial — There is no limit on the amount of money you can make off of the copyrighted material.  One of the ideas underlying copyright is protection for authors for their works.  If artists can’t profit from their creations, why bother creating works in the first place?

-Intent to be original — If you are creating a copy, but unintentionally create something different, this work will be protected because it is a distinguishable variation.  Suppose you are copying a sketch, but are startled and add an errant line. You will have copyright protection in that work.  However, your protection will be limited to the amount that you added to the underlying copyrighted work.

Generally, these items have been left out to make take the guess work out of granting copyright protection.

The third requirement is that the work be fixed in a “tangible medium of expression.”  The author must reduce the idea to a fixed form that can be shared with others, and that form must be stable and permanent. If you can’t reproduce it, you can’t get copyright protection. The fixation is sufficient if the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

There is no required form for fixation.  If you need to write the idea down with a sharpie on a pad, that will work.  If you have the time to type it up, so much the better.  If you have to carve it into stone because that is what you have available, then that will work as well.

In the music world, this will largely mean either writing down the music in some form, either musical notation or tablature, or making an audio recording of the idea.  Live performances by themselves will not meet this test, even if regularly performed. A live broadcast, on the other hand, is copyrightable because of the decisions that are made in its production as well as being fixed in video tape.
Up next week: Why you can practice your karate kicks in the pit.

Introduction and Copyright Overview

Before we get started, a bit of background.  I am fully licensed by one of jurisdictions of the United States as an Attorney and Counsellor at Law.  I’ve been listening to metal since Metallica’s Black Album came out when I was in middle school.  During law school, I spent two years as a member of the street team for one of the metal labels.  I spend most of my time practicing tax and probate law, but I have worked in copyright and entertainment law as well.

In my posts I am going to be talking about how the law interacts with the world of music. While this mainly means copyright law, that there are a host of other issues that both fans and bands face every day.  It may also occur to you that bands occasionally find themselves in trouble with the law.  How did they get there? I will be talking about the laws involved in bringing those to the courtroom.  Finally, I love Metalocalypse, and occasionally, they touch upon legal issues.  I’ll spend some time delving into how the law has dealt with similar situations and whether or not Dethklok can get away with what they did on the show.

There are a few things to remember going forward.  First, I am most likely not licensed to provide legal advice in your area. This means that the laws for your area are going to be different from the laws in my area. Second, even if you are from my area, I will have written all of these posts based upon generally-applicable laws, which may not be applicable here.  Third, no two situations are ever the same so the result in one case might be completely different from another case. Taken together, this means that nothing I say should be construed as specific legal advice.  If you have a problem that requires legal help, you need to seek the help of a licensed attorney in your area.

With that out of the way, I’ll finish with a quick overview of copyright law. I will spend more time fleshing out these topics in future posts.  For everyone’s benefit, I’m leaving out the citations to the U.S. Code and any case law.

Copyright is a part of a specialized subset of Property law known as Intellectual Property law, or IP law.  The other areas of IP law are trademark law and patent law.  Traditional Property law protects the rights an owner has in any physical object they own, be it either personal property (e.g. car, computer) or real property (e.g. 921 Jeopardy Lane).  IP attempts to provide the same kind of protection to items which are harder to protect because these properties do not have a physical presence.

Copyright is the principal means of protecting works of authorship.  It’s protections will covers the range of literary and artistic expression, such as musical compositions, writings, drawings, performances, movies, and other works of art.  One justification for copyright is that the artist who creates a work has the right to control the display and publication of that work.  Additionally, by protecting the artist from infringing activities, it should serve as an incentive for all artists to create more.

Once you have copyright in your work, what protections do you have? First, you may control the publication of your work.  If you want your work printed on the front page of the New York Times, and you can get it there, you as the rights holder are free to put it there.  If you only want to show your work in a basement in Akron on alternate Sundays, that is also your right. Second, you have the right to stop all infringing uses of your work.  If someone is copying your work, you can force them to stop. Third, as the rights holder, you may decide that you no longer want to deal with the burdens of ownership, and you are free to sell your rights to another party.

Acquiring copyright is fairly easy, and there are two main requirements.  The first is that  the work must be fixed in a tangible medium of expression.  Put simply, there must be some way of reproducing the work created.  For music, that typically means either  making an audio recording or writing the music down.  The second requirement is that there must be some originality in the work.  It’s not enough that you take  The Great Gatsby, change the font used, and the publish it under your name.  It is a fairly straightforward system that allows for easy protection of ideas.

DISCLAIMER

Antonin Skullia, Esq. is licensed by the one of the many fine states of this great union as an Attorney and Counsellor at Law.  While he is a licensed Attorney, nothing in this article should be construed as specific legal advice.  It only constitutes commentary on legal issues, and is for educational and informational purposes only.

Reading this article, replying to its posts, or any other interaction on this site does not create an attorney-client privilege between you and the author. No attorney-client relationship has been created, nor should one be implied. As with any legal issue that may confront you in a particular situation, you should always consult a qualified attorney familiar with the laws in your state.

If you have specific issues you would like to see discussed in future columns, you may contact Antonin at antonin [dot] skullia [dot] esq [at] gmail [dot] com.  However, Antonin will not be able to respond to any requests for specific legal advice.