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Erin M. Jacobson - Music and Entertainment Attorney, Los Angeles, CA

Erin M. Jacobson is is an experienced deal negotiator and a seasoned advisor of intellectual property rights who protects artists, songwriters, music publishers, and other music professionals. Her clients include Grammy and Emmy Award winners, independent artists and companies, and distinguished legacy catalogues, as her knowledge of both classic music and current industry practices places her in a unique position to protect and revitalize older catalogues. She handles all types of music industry agreements, with an emphasis on music publishing. In addition to being named a Super Lawyers Rising Star and one of the Top Women Attorneys in Southern California, Ms. Jacobson is a frequent author and speaker, and has been featured in publications, including Billboard and Forbes. She also is on the Board of Directors for both the California Copyright Conference (CCC) and the Association of Independent Music Publishers (AIMP).

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“Blurred Lines” — It’s the Hottest Case in This Place

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Categories: Articles, Copyright, Legal Disputes, Music, Music Industry, Tags: , , , , , , , , , , , , , , , , , , , , , , , ,

Summary of the Legal Saga

“Blurred Lines” by Robin Thicke, Pharrell Williams, and Clifford Harris, Jr. was released in March of 2013.  It quickly caught attention for it’s catchy hook; fun, danceable beat; and seeming similarity to Marvin Gaye’s “Got to Give It Up.”  (For ease of reading, I have referred to the writers of “Blurred Lines” as “Thicke,” but please note that all writers of “Blurred Lines” are included in the lawsuits discussed.  Instances involving Robin Thicke individually will be referenced as “Robin Thicke.”)

In May of 2013, Robin Thicke gave an interview to GQ magazine where he talked about how “Blurred Lines” came about, stating:

 “Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye’s ‘Got to Give It Up.’ I was like, ‘Damn, we should make something like that, something with that groove.’ Then he started playing a little something and we literally wrote the song in about a half hour and recorded it . . . . Him and I would go back and forth where I’d sing a line and he’d be like, ‘Hey, hey, hey!’ We started acting like we were two old men on a porch hollering at girls like, ‘Hey, where you going, girl? Come over here!’”[1]

On July 9, 2013, Robin Thicke told Billboard:

“Pharrell and I were in the studio making a couple records, and then on the third day I told him I wanted to do something kinda like Marvin Gaye’s ‘Got To Give It Up,’ that kind of feel ’cause it’s one of my favorite songs of all time.”[2]

At the beginning of August 2013, the song “Blurred Lines” and the album of the same name both reached No. 1 on the charts.  However, the success was not without turmoil.  There was a lot of controversy floating around that Marvin Gaye’s estate (managed by Gaye’s children) felt the song “Blurred Lines” infringed the copyright of “Got to Give It Up” and there was also talk of infringement of Funkadelic’s “Sexy Ways.”[3]  News reports stated that Thicke had offered the Gaye Estate a “six-figure settlement” to quash the case, but the family turned it down.[4]  In mid-August, attorneys for Thicke filed a lawsuit to win a declaration that “Blurred Lines” did not infringe on the copyright of “Got to Give It Up” and “Sexy Ways.”[5] Thicke took the approach that “Blurred Lines” evoked the same “sound”[6] as “Got to Give It Up,” but that it did not infringe any copyrights of Gaye’s composition.  Thicke accused the Gaye Estate of trying to claim ownership of an entire genre, as opposed to a specific work.[7]

“Sexy Ways” writer and Funkadelic leader George Clinton is on Thicke’s side.  He tweeted “No sample of #Funkadelic‘s ‘Sexy Ways’ in @robinthicke‘s ‘Blurred Lines’ … We support @robinthicke @Pharrell!”[8]

In further support of Thicke, George Clinton announced on Twitter that he was taking his position to TMZ.[9]   On TMZ, Clinton said he wishes he wrote “Blurred Lines,”[10] and admitted that in comparing Thicke’s composition to “Sexy Ways” he did “hear a similar tone of voice, style, and a few notes, but not enough to sue.”  Clinton also made it clear that it was his publisher, Bridgeport Music, who was suing on behalf of Clinton and that Clinton himself did not support the suit.[11]  When asked about the similarity between “Blurred Lines” and “Got to Give It Up,” Clinton saw where people would make the correlation, but said he would testify in defense of Thicke.[12]  Since then, mentions of any infringement of “Sexy Ways” have quieted.

In October 2013, the Gaye Estate (minus Marvin Gaye III)[13] responded aggressively to Thicke’s lawsuit.  The Estate not only maintains its claim that “Blurred Lines” infringes on the copyright of “Got to Give It Up,” but also has filed another claim asserting that Robin Thicke’s song “Love After War” infringes on Gaye’s song “After the Dance.”[14]  The Gaye Estate also argues that Robin Thicke’s song “Make U Love Me” is similar in theme to Gaye’s song “I Want You,”[15] although the Estate did not add this supposed infringement to the list of formal claims in the lawsuit.  The Gaye Estate even said that Robin Thicke has a “Marvin Gaye fixation.”[16]

In addition to going after Thicke, the Gaye Estate is also dragging EMI April (now owned by Sony/ATV) into the dispute.[17]  EMI is the music publisher for “Blurred Lines” and also the music publishing administrator for Marvin Gaye’s catalogue.[18]  The Gaye Estate accuses EMI of having a conflict of interest since it represents both songs, and chastises EMI for failing to bring a suit to protect “Got to Give It Up” and for trying to intimidate the Gaye Estate from bringing a suit themselves.[19]  This puts EMI in a very difficult position as one wonders how the company could assert complete loyalty to both songs, from which it stands to make a profit.  EMI understandably doesn’t want to rock the boat, but after this messy fight it may lose one or both clients as well as one or both songs – plus the related profits.

The Gaye family now also claims there was never a six-figure settlement offered to them and that was a false story planted in the press to make the Gaye family seem unreasonable.[20]

Thicke’s lawyer, Howard King, released a statement to The Hollywood Reporter saying the Gaye Estate actually has no standing to sue on this matter and that three musicologists have reported that while the songs sound similar, their notes are different.[21]  However, Judith Finell, another well-known musicologist issued a report stating: “The two songs’ substantial similarities surpass the realm of generic coincidence reaching to the very essence of each work,” and offers a preliminary conclusion that “‘Blurred [Lines]’ was not created independently of ‘[Got to] Give It Up.’”[22]

On November 26, 2013, Marvin Gaye III filed his own lawsuit for infringement of “Got to Give It Up” by “Blurred Lines’” and infringement of “After the Dance” by “Love After War.”[23]  Unlike his siblings, he did not include a claim against EMI.  He did also mention the “Make U Love Me” / “I Want You” similarity, as well as the undeniable relationship between Robin Thicke’s song “Million Dolla Baby” and Gaye’s “Trouble Man.”[24]

Analysis

Robin Thicke’s interviews with GQ and Billboard are not going to bode well for his position in this case.  Anytime one says that a certain work inspired his newly created work it is going to fuel the fire of the other side’s infringement argument.

Thicke’s primary filing was a surprising move, as usually the party accusing infringement files first.  In this case, the writers sought to declare their innocence before the other parties filed against them.  It’s an interesting approach and I applaud Thicke’s attorneys for their proactive nature.  However, that first filing probably came across to many, or at least to Gaye’s children, as an aggressive move that elevated the level of the dispute.  It may also look suspicious to some observers when a supposedly innocent party has to loudly announce his innocence despite the law providing for a person’s innocence until proven guilty.

The Gaye family retaliated hard and seems to want to show everyone that they are taking this seriously and won’t go down without a fight.  Some people have asked me whether this will still settle out of court.  The truth is that it might – one never knows the direction a dispute like this will take.  However, I think for that to happen the monetary figure would have to be substantially large and might also involve the Gaye Estate gaining all or a portion of the “Blurred Lines” copyright.  Aside from that, I think the Gaye family’s stance portrays an image that they are more than willing to go to trial if necessary and will battle this issue until the end.

As stated above, at least three of the musicology reports are supposedly in Thicke’s favor, but have not been released.  Conversely, Finell’s report is not in Thicke’s favor.  In lay terms, Finell’s preliminary conclusion means “Blurred Lines” does infringe on “Got to Give It Up.”  (Note:  This is my interpretation of Finell’s report and based upon the contents of the report alone.  While I do know Ms. Finell, we did not discuss the details of the case or her report.)

Under copyright law, two similar works can be created independently of each other without infringement.  For example, two independent musicians on opposite sides of the country could create original and copyrightable songs that sound very similar to each other, without knowing each other or ever hearing each other’s music.  After all, there are only so many notes and chords that can be played.  However, in an infringement suit, here are some elements a court would examine:

1.  Copying

 One would have to show that the accused infringer directly copied the prior work.  This can be difficult to prove and is a point of contention in this case since Thicke claims they were only trying to evoke a sound[25] and did not expressly copy Gaye’s song.  However, Robin Thicke’s interviews with GQ and Billboard don’t help their case since Robin Thicke specifically said that “Got to Give It Up” was his favorite song[26] and he wanted to create “something like that.”[27]

2.  Access:

Even if direct copying cannot be proven, courts will assume that copying did occur if it is shown that the accused infringer had access to the supposedly infringed composition.  This could actually be a slam dunk point for the Gaye family since Robin Thicke admitted it is his favorite song in the GQ and Billboard interviews.

However, even if Robin Thicke did not admit his love for “Got to Give It Up,” the song’s fame and prominence in pop culture would satisfy this element.  The song has been played on the radio and is widely known, so the court will make the assumption that Thicke has heard it simply because it is a famous song.

Here’s another real world example:  In Bright Tunes Music Corp. v. Harrisongs Music, Ltd.,[28] George Harrison’s song “My Sweet Lord” was deemed to infringe on the song “He’s So Fine” recorded by The Chiffons in 1962.[29]  The court didn’t require actual proof that Harrison had heard  “He’s So Fine” before; it relied on the fact that “He’s So Fine” had the top position on the Billboard charts in the U.S. for five weeks and hit No. 12 in England in 1963[30] – coincidentally at the same time The Beatles were becoming famous.[31]  The court concluded that Harrison unconsciously plagiarized “He’s So Fine” when he composed “My Sweet Lord” because “his subconscious knew [the musical combination of notes] had worked in a song his conscious mind did not remember.”[32]  The court went on to further conclude that it did not believe Harrison deliberately copied the song,[33] but ruled against him anyway because access to “He’s So Fine” was assumed due to its fame and the two songs had enough similarities to satisfy the court.[34]  For those of us well versed in Beatles trivia, it is also known that the lads were fans of the early-60s girl groups and Phil Spector’s production style, later hiring Spector to produce the album “Let It Be.”  In an ironic and amusing turn of events, Harrison eventually purchased the copyright to “He’s So Fine,” making him the owner of both compositions.

3.  Substantial Similarity:

Another factor to look at is whether a lay person (i.e. a regular music listener) would view the two songs as similar.  Again, Finell’s report shows that the two compositions are very similar to each other, and much internet buzz has shown that most listeners are immediately able to pick up on the similarity (provided they are familiar with Gaye’s song).

To further complicate matters, it seems Robin Thicke has a pattern of releasing songs that sound like songs by Marvin Gaye.  A simple online search yields several websites showing the undeniable similarities between “Million Dolla Baby” and “Trouble Man,”[35] as well as the other three mentioned compositions.  However, Robin Thicke had permission from the Gaye Estate for “Million Dolla Baby” and the song credits list Gaye as a writer.[36]  Therefore it is probable the family is receiving royalties for that song and thus would not sue for that composition.[37]  What bothers me as a music appreciator is that I like some of Robin Thicke’s music.  With this pattern cropping up of multiple songs sounding like Gaye, I think it makes him lose credibility as an artist/writer and may end up hurting his career.  There is already talk within the industry that he may not win awards this season because of this legal battle.  It would be sad to see him lose future success because of this emerging pattern.

The first time I heard “Blurred Lines,” I realized the similarity to “Got to Give It Up,” but personally felt that it was evoking a sound more than direct infringement.   What strengthens the “evoking a sound” argument is the number of other songs that also have similar elements to both “Blurred Lines” and “Got to Give it Up.”  “Sexy Ways” was released in 1974.  “Got to Give It Up” was released in 1977.  The Jacksons then released “Shake Your Body (Down to the Ground)” in 1978, which has a similar “woo!” to “Blurred Lines.”  Michael Jackson’s 1979 hit “Don’t Stop ‘Til You Get Enough” has yet another similar “woo!” as well as a similar rhythm and use of cowbell as “Blurred Lines.” Marvin Gaye didn’t sue Michael or any of the other Jacksons for these songs, which made me wonder why Thicke is now a target for “Blurred Lines.”  Also, all of the songs just mentioned (with the exception of “Sexy Ways”) are from 1977-1979.   The 1970s was a distinct era and had a recognizable sound that “Blurred Lines” does evoke.

Some of my colleagues think it would be a travesty if federal judges did not police copyright more strictly and rule against Thicke in this case, fearing that it could allow more cases of actual infringement to slide through the cracks, or worse, be deemed acceptable and set a precedent for others to willfully infringe.  On the other hand, part of the purpose of copyright is to create a benefit or award to creators[38] of “original works of authorship,”[39] but that protection is also limited in duration.  Copyright is not meant to stifle creativity, so I think the challenge in this case is balancing the protection of existing compositions without stifling the creation of new works.

There are a variety of possible outcomes in this case and I will continue to provide my analysis as more details emerge.



[1] Stelios Phili, Robin Thicke on That Banned Video, Collaborating with 2 Chainz and Kendrick Lamar, a and His New Film, GQ, May 7, 2013, http://www.gq.com/blogs/the-feed/2013/05/robin-thicke-interview-blurred-lines-music-video-collaborating-with-2-chainz-and-kendrick-lamar-mercy.html.

[2] Gary Graff, Robin Thicke on Wife’s Impact on ‘Blurred Lines,’ Not Touring America Until 2014, Billboard, July 9, 2013, http://www.billboard.com/articles/news/1569348/robin-thicke-on-wifes-impact-on-blurred-lines-not-touring-america-until-2014

[3] Eriq Gardner, Robin Thicke Sues to Protect “Blurred Lines” from Marvin Gaye’s Family (Exclusive), THE HOLLYWOOD REPORTER, ESQ., August 15, 2013, http://www.hollywoodreporter.com/thr-esq/robin-thicke-sues-protect-blurred-607492.

[4] Alex Pham, “Blurred Lines” Legal Battle:  Marvin Gaye’s Family Rejected Robin Thicke’s Six-Figure Offer, THE HOLLYWOOD REPORTER, ESQ., August 23, 2013, http://www.hollywoodreporter.com/thr-esq/blurred-lines-legal-battle-marvin-613551.

[5] Eriq Gardner, Robin Thicke Sues to Protect “Blurred Lines” from Marvin Gaye’s Family (Exclusive), THE HOLLYWOOD REPORTER, ESQ., August 15, 2013, http://www.hollywoodreporter.com/thr-esq/robin-thicke-sues-protect-blurred-607492.

[6] Id.

[7] Id.

[8] Posting of George Clinton to Twitter, https://twitter.com/george_clinton (August 15, 2013); Eriq Gardner, Robin Thicke Sues to Protect “Blurred Lines” from Marvin Gaye’s Family (Exclusive), THE HOLLYWOOD REPORTER, ESQ., August 15, 2013, http://www.hollywoodreporter.com/thr-esq/robin-thicke-sues-protect-blurred-607492.

[9] Posting of George Clinton to Twitter, https://twitter.com/george_clinton/status/369826118456467456 (August 15, 2013).

[10] Interview by Harvey Levin with George Clinton, on TMZ, (August 19, 2013), http://www.tmz.com/2013/08/19/tmz-live-lindsay-oprah-winfrey-lohan-thomas-gibson-lebron-james-robin-thicke-george-clinton-robert-pattinson-katie-couric-kim-kardashian-jennifer-lopez-the-calling/

[11] Id.

[12] Id.

[13] Eriq Gardner, Marvin Gaye’s Oldest Son Claims Robin Thicke Copied Four Songs (Exclusive), THE HOLLYWOOD REPORTER, ESQ., November 26, 2013, http://www.hollywoodreporter.com/thr-esq/marvin-gayes-oldest-son-claims-660382

[14] Eriq Gardner, Blurred Lines” Lawsuit:  Marvin Gaye Family Now Claims Robin Thicke Stole Two Songs (Exclusive), THE HOLLYWOOD REPORTER, ESQ., October 30, 2013, http://www.hollywoodreporter.com/thr-esq/blurred-lines-lawsuit-marvin-gaye-651427

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Report from Judith Finell, Judith Finell Music Services, Inc., Preliminary Report:  Comparison of “Got to Give It Up” and “Blurred Lines” (October 17, 2013) http://www.hollywoodreporter.com/sites/default/files/custom/Documents/ESQ/musicologyblurred.pdf

[23] Eriq Gardner, Marvin Gaye’s Oldest Son Claims Robin Thicke Copied Four Songs (Exclusive), THE HOLLYWOOD REPORTER, ESQ., November 26, 2013, http://www.hollywoodreporter.com/thr-esq/marvin-gayes-oldest-son-claims-660382

[24] Eriq Gardner, Marvin Gaye’s Oldest Son Claims Robin Thicke Copied Four Songs (Exclusive), THE HOLLYWOOD REPORTER, ESQ., November 26, 2013, http://www.hollywoodreporter.com/thr-esq/marvin-gayes-oldest-son-claims-660382; Marc Hogan, Marvin Gaye’s son Widens Robin Thicke Theft Accusations Beyond “Blurred Lines,” SPIN, August 22, 2013, http://www.spin.com/articles/marvin-gaye-son-robin-thicke-blurred-lines-lawsuit-trouble-man/

[25] Eriq Gardner, Robin Thicke Sues to Protect “Blurred Lines” from Marvin Gaye’s Family (Exclusive), THE HOLLYWOOD REPORTER, ESQ., August 15, 2013, http://www.hollywoodreporter.com/thr-esq/robin-thicke-sues-protect-blurred-607492.

[26] Gary Graff, Robin Thicke on Wife’s Impact on ‘Blurred Lines,’ Not Touring America Until 2014, Billboard, July 9, 2013, http://www.billboard.com/articles/news/1569348/robin-thicke-on-wifes-impact-on-blurred-lines-not-touring-america-until-2014

[27] Stelios Phili, Robin Thicke on That Banned Video, Collaborating with 2 Chainz and Kendrick Lamar, a and His New Film, GQ, May 7, 2013, http://www.gq.com/blogs/the-feed/2013/05/robin-thicke-interview-blurred-lines-music-video-collaborating-with-2-chainz-and-kendrick-lamar-mercy.html.

[28] Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177 (1976).

[29] Id.

[30] Id. at 179.

[31] Id.

[32] Id. at 180.

[33] Id. at 181.

[34] Id.

[35] Marc Hogan, Marvin Gaye’s son Widens Robin Thicke Theft Accusations Beyond “Blurred Lines,” SPIN, August 22, 2013, http://www.spin.com/articles/marvin-gaye-son-robin-thicke-blurred-lines-lawsuit-trouble-man/

[36] Id.

[37] Id.

[38] Craig Joyce et al., Copyright Law 2 (7th ed., LexisNexis)(2006).

[39] Id. at 3.

© 2013 Erin M. Jacobson, Esq. All Rights Reserved. If you like this article and want to share it, please provide a link to www.themusicindustrylawyer.com or a direct link to the post for others to read it.

This site is not intended or offered as legal advice. These materials have been prepared for educational and information purposes only. They are not legal advice or legal opinions on any specific matters. If they are considered advertisements, they are general in nature and not directed towards any particular person or entity. Transmission of the information is not intended to create, and receipt does not constitute, a lawyer-client relationship between this site, Erin M. Jacobson, Esq., and you or any other user. The content is not guaranteed to be correct, complete, or up-to-date. The law may vary based on the facts of particular circumstances or the law in your state. You should not act, or fail to act, upon this information without seeking professional counsel. No person should act or fail to act on any legal matter based on the contents of this site. Unless expressly stated otherwise, no document herein should be assumed to be produced by an attorney licensed in your state. For more information, please click on the “Disclaimer” section in the top menu of this site.
 

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Why the CD is Still Important

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Categories: Music Industry, Record Labels, Tags: , , , , ,

Forbes recently reported three main reasons why the CD is still important.

image by Ulf Hinze, Hannover, Germany feel free to use it for anything!1.  Last year, there were at least 211 million CD sales in the US yielding at least $2.5 billion in revenue.  I say “at least” because these numbers were taken from official RIAA data and didn’t include independent musician sales at shows and on websites, including other sales not tracked by SoundScan.  Not too shabby.

2.  There are still people that would rather buy a CD, especially those in country and hard rock markets.

3.  Reviewers (even blog reviewers) still want CD submissions rather than digital.  Plus, now there are services where you can press CDs as needed rather than having to place large orders upfront; a more economical system for independent musicians.

The CD may be old, but it isn’t dead yet.

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5 Music Companies That Will Disappear Within 5 Years

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Categories: Business, Digital Distribution, Music Industry, Record Labels, Tags: , , , , , , , , , , ,

Paul Reskinoff predicts that Pandora, one major label, Spotify, Live Nation, and MySpace will all be just a memory within the next five years.  Why?  According to Reskinoff, Pandora does not have a sustainable business model and its founder Tim Westergren has been liquidating his available shares.  The major label model continues to crumble in the digital age; Spotify and Live Nation have been continually losing money, and MySpace has lost its relevance.  Keep a watch on these companies to see if Reskinoff’s predictions become realities.

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EFF Asks Essential Questions Regarding Digital Copyright Ownership

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Categories: Copyright, Digital Distribution, Legal Issues, Music Industry, Tags: , , , , , , , , , , , ,

A recent panel featuring Electronic Frontier Foundation‘s Julie Samuels, Techdirt‘s Mike Masnick and American University Washington College of Law professor, Michael Carroll posed some very interesting questions regarding future ownership of digital content.  The panel’s topic was prompted by the Megaupload decisions.  The panelists asked who owns digital content and that if you upload content to a website that has terms and conditions to own the content you upload (or changes those terms to own the content after you have already signed up), does that digital content become digital assets able to be seized by a bank in bankruptcy proceedings if the company/website folds?  What happens to and who owns a person’s digital content when he dies?  The panel further explained that they don’t feel copyright law is progressing fast enough to keep up with the speed of technology, although it appears lawmakers are open to change.

I know many folks in this business do not like the EFF because they feel the EFF is usually too radical in it’s approach to copyright, however, I think everyone can agree that the questions posed are ones definitely worth answering.

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U.K. Extends Copyright Protection for Sound Recordings

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Categories: Copyright, Music Industry, Music Industry Interviews, Record Labels, Tags: , , , ,

Billboard reports the U.K. has extended its copyright provisions for sound recordings, changing the term of protection from 50 to 70 years.  This twenty year extension will benefit performing artists, and of course, record labels.  The extension applies only to recordings, not to compositions, but still must offer a great relief for many legacy acts and rights holders that were losing or about to lose recording rights.

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Copyright Registrar Supports Artists at ASCAP Meeting

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Categories: Copyright, Music, Music Industry, Music Publishing, Tags: , , ,

On November 6, 2013, Maria Pallante visited the ASCAP offices to discuss copyright reform. Pallante, the Registrar of Copyrights, said: “Congress has a duty to keep authors in its mind’s eye, including songwriters…A law that does not provide for authors would be illogical — hardly a copyright law at all.” See the full story at ASCAP’s website. Learn more about Maria Pallante at the Copyright Office website.

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Artists Fed Up With Low Streaming Royalties — Threaten to Sue Labels

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Categories: Digital Distribution, Music Industry, Music Publishing, Record Labels, Royalties

International music artists are fed up with low streaming royalty payments, and fed up with the labels getting a bigger cut of those royalties than the artists receive.  Warner and Universal Music are now facing possible lawsuits from artists unless they agree to increase the artists’ share of those royalties.  While The Guardian cites example figures in British pounds, today’s currency conversion rates show that while the artist could make roughly $800 on 1 million Spotify streams, the label would make over $7,000 for those same streams.  To further complicate things, some artists’ contracts pre-date the online wave and those artists’ royalty shares fall under the old model when online streams were not contemplated.  In addition, music publishers are joining the fight to complain they are not paid as much as labels from the digital streaming services.  (Source:  The Guardian — “Spotify row:  artists threaten to sue labels over music streaming)

Due to the speed of technology, many of the artists’ contracts are outdated in their terms even though the contracts themselves are still governing the relationships between artists and labels.  In this digital age, it is important for artist lawyers to attempt renegotiation of these older agreements to ensure artists are sharing fairly in the income from these new technologies and services.  The problem is that many labels may not be willing to renegotiate royalty terms.   In addition, major label contract terms often lag behind the times even for newly-signed deals, so it is important for the artist representative to stay current on industry trends and know which terms to update in deal negotiations.  Major labels have notoriously been somewhat behind the times in relation to many online and technological developments, and my prediction is that they will not be so willing to renegotiate a large number of contracts.  Sure, they might change terms for some of their most important (i.e. financially successful) artists, but I doubt they would do a long list of renegotiations without an influx of lawsuits — or at least the threat of them.

Technology definitely has a way of keeping the litigators busy…

© 2013 Erin M. Jacobson, Esq. All Rights Reserved. If you like this article and want to share it, please provide a link to www.themusicindustrylawyer.com or a direct link to the post for others to read it.

This site is not intended or offered as legal advice. These materials have been prepared for educational and information purposes only. They are not legal advice or legal opinions on any specific matters. If they are considered advertisements, they are general in nature and not directed towards any particular person or entity. Transmission of the information is not intended to create, and receipt does not constitute, a lawyer-client relationship between this site, Erin M. Jacobson, Esq., and you or any other user. The content is not guaranteed to be correct, complete, or up-to-date. The law may vary based on the facts of particular circumstances or the law in your state. You should not act, or fail to act, upon this information without seeking professional counsel. No person should act or fail to act on any legal matter based on the contents of this site. Unless expressly stated otherwise, no document herein should be assumed to be produced by an attorney licensed in your state. For more information, please click on the “Disclaimer” section in the top menu of this site.
 

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Interview with Carl Caprioglio of The Oglio Entertainment Group, Inc.

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Categories: Business, Crowd Funding, Management, Music, Music Industry, Music Industry Interviews, Record Labels, Tags: , , , , , , , , , , , , , , , , , , , , , , ,

Today’s interview is with Carl Caprioglio of The Oglio Entertainment Group, Inc., a great independent record label that is a lot more than just a record label.

Oglio 20th Anniversary LogoNow in its 20th year, Oglio achieved worldwide recognition as a successful niche marketer of entertainment products. Oglio releases have received acclaim and significant sales success including a Billboard Top 50 hit benefiting the Make A Wish Foundation, and projects with Brian Wilson (Beach Boys), Cyndi Lauper, Robby Krieger (Doors), Ray Manzarek (Doors), Nerf Herder, Parry Gripp, Kool Keith, Ultramagnetic MCs, Rob Schneider, Jackie Martling (Howard Stern Show), Andy Dick, Craig Gass, and George Lopez. Oglio’s growth has been significant enough to earn a position on Inc. Magazine’s 1998 listing of the 500 fastest growing companies in America. In 2013, Oglio extended into the management space with the launch of “Manage It Comedy” – a service designed to help the working comic manage their business. Manage It Comedy helps comedians release their merchandise to market, build a web presence and use social media to market themselves.

1.     Describe a typical day at the office.

One of the great things about being in the entertainment business is that there is not typical day. That said, I do have a bit of a routine that starts with attacking my email in box and checking all the regular social media sites for my artists’ activities. Once I have a handle on the mayhem that has ensued since the last time I checked those places, I write up my daily priorities on one of my office white boards and get to work. My office is in Torrance, a bit of a drive from the media centers of Los Angeles, so I try to set up a lunch meeting or two each week. My workday ends with more email and project development from home after dinner.

2.     What is your favorite part of your job?

To quote the great Hannibal Smith from the A-Team – “I love it when a plan comes together.” Whether it is a record that goes from concept to release or a licensing deal or a new direction for my business, the most satisfying part of my job is that feeling of that success when it comes to fruition. It really isn’t tied to money (although that helps) but it is more about that great rush of satisfaction.

3.     What are some projects that you are currently working on that you can discuss?  

On the record side we have two new releases – one from the metal bash-up band Beatallica that combines the sounds of Metallica and The Beatles and the other from comedian Craig Gass of Howard Stern Show fame. They are wildly different projects but both are personal favorites.

Recently my attention has been moving toward artist management. Over the years a few of the artists on my label have asked me about managing them, but I liked the label side and didn’t pursue it at the time. I’ve come to realize that I enjoy the interaction with the artists and bringing that interaction to another level seems like a natural move. I can provide the bigger picture help they need and still handle the label side if needed. It seems like a logical move and I use much of the same skillset that have developed over the last 20 years in business.

4.     What do you think are the most important issues facing labels and artists at this time?

Top of the list has to be the idea that music should be free and that both artists and labels can make up the income by selling t-shirts or touring. As a label owner and a friend to artists, I’ve had many discussions about how “fans” find a justification for stealing music. Despite the perception that labels and artists were caught off guard, we could see this train coming, but unfortunately we weren’t able to do much about it. For me I simply underestimated people’s willingness to steal and the ease of which they justify their actions.

5.     What do you think is the most profitable area of the music industry for independent artists today?

For your typical independent artist, I’m going to go with the new broad definition of “merch.” Merch (short for “merchandise”) now encompasses music, t-shirts, hats, hoodies, iPhone cases, tote bags, jewelry, USB drives and anything else you can put on your merch table or sell on your website. At one time the music part of the merch table was controlled by the labels but now that control is back with the artist in most cases. My favorite merch items are USB drives in fun shapes that artists can load up with not only their music but also videos, art and even a recording of the show from that very night. One of my artists, MC Lars, sells a small metal USB robot loaded with the music, videos and art from his album “This Gigantic Robot Kills” and it is a best seller for him on the road.

6.     What other avenues are still profitable for artists?

I see PledgeMusic and Kickstarter as great avenues for artists with a fan base that can be mobilized. I have seen PledgeMusic and Kickstarter album campaigns that have raised substantially more than the actual recording costs. The extra revenue goes right into the pockets of the artists and the artists then have the ability to sell their music for 100% profit from the release date forward. This is a very powerful tool available to artists that have a following.

7.     What types of deals are mostly being offered now among the independent labels?

In 1999, Oglio started offering “profit split” deals to artists that brought us recordings ready to be released. At the time it was a very unusual proposal but we felt that the partnership feel made for a more positive and collaborative working relationship. We treated our artists like business associates and we set our plans based on our mutual goals. Those deals worked well for both sides and Oglio was able to work with some legendary artists that would not have normally been interested in an independent label. I see those joint venture deals becoming more and more popular as artists have more control and labels look for ways to mitigate the risk involved in recording costs.

8.     What is an independent label looking for when considering signing a new artist?  Is there any criteria an artist needs to have to even be considered for a deal?

At Oglio it starts with the music. We have to feel strongly about the music itself and also its commercial potential. Every artist feels that their music is fantastic but the point where we often disagree is what we can offer as a label and still make a profit on the project. If the artist doesn’t have a fan base, touring history and traction, it just might be too soon for a label to get involved. We often turn down artists with the suggestion to self release and play live shows while they gain the momentum we would need to get involved.

Thanks so much to Carl for some very insightful comments.  To learn more about Oglio, visit www.oglio.com.

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Client News: Adam Small Launches New Venture in Music Consulting, Management, Licensing, and More

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Categories: Clients, Music Industry, Tags: , , , , , , , , , , , , , , ,

My client Adam Small of My Music Masterclass has now launched Adam Small Music, a company focusing on music career consulting, management, licensing, publishing, and more.

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Adam is a professional touring bassist, has a large career in music licensing, and is also a mastering engineer, studio consultant, video editor, web designer, computer tech, etc.  He is now using his more than twenty years experience in the music industry to help other artists with their careers.

I encourage you to learn more about Adam Small Music at www.adamsmallmusic.com.

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Interview with Steven Corn of BFM Digital

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Categories: Digital Distribution, Music Industry, Music Industry Interviews, Uncategorized, Tags: , , , , , , , , , , , , , , , , ,

 To kick off my first in a series of interviews with music industry professionals, I had a chat with Steven Corn of BFM Digital.

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BFM Digital is a digital distribution, marketing, and promotions company for select music, film, and other digital content.  BFM distributes its diverse catalog via all the leading digital and mobile platforms worldwide.

 

1.  Please explain a bit more about your company, BFM Digital.

BFM Digital distinguishes itself through its boutique size, personalized customer service and quality catalog.  Representing only select labels and artists allows us to become a true partner and advocate for our client’s digital goals. We work one-on-one with clients to develop a comprehensive release schedule. Further, we interface with clients about pricing and marketing strategies aiming to increase revenue and maximize exposure of their content.

Conversely, BFM also works closely with the leading digital services to promote our catalog on their storefronts through featured placements and product promotions. The strength of our relationships with them enables us to be aware of various promotional opportunities for which we will submit your titles if they are the right fit.

2.  Describe a typical day at the office for you.

During breakfast, I check on the previous sales for iTunes, Amazon and Youtube and make a note of any interesting trends or unexpected sales.  On the way to work (a 45 min commute), I often will skype from my cell phone to one of our European tech partners or distributed labels.  It’s a great way to kill the commute.  I also create my daily to-do in my head while I commute.  Usually the first thing that I do after arriving is to review the back log of agreements that need my review and attention.  I try to get to at least a couple each day.  Next up would be to meet with our delivery department to see if there are any new issues that have arisen.  I’ll look at financials and cash flow statements along the way.  At some point, I’ll discuss potential marketing submissions to the DSPs with my VP of Marketing.  Mixed into the fray is reviewing potential new content providers, reading up on trending news, and seeing how various biz dev workflows are proceeding.  Generally, there are several fires to put out and that can disrupt any plans that I created along my commute.  If I’m lucky, I get to complete 50% of my daily goals.

3. What is your favorite part of your job?

I love tracking the success of a digital compilation that my A&R team created.  We make inter- and intra-label virtual albums to create new retail sku’s from existing catalog.  It’s such a rewarding feeling to see these start to sale.  Creating a new revenue-earning product from nothing is very satisfying.  A close second is when I see one of our needy, indie artists start to make money from their digital catalog.  Our payments have literally housed some of our more financially challenged artists.  Getting them off the streets into decent housing is one of the greatest motivations for being in business.

4.  What do you think is the most profitable area of the music industry for independent artists today?

If you can get an album or catalog to sell across borders, that can be immensely profitable considering the cost efficiencies.  However,  it seems that on a per-unit basis, ringtones and limited edition vinyls present the best profit margins.  But for many, a good synch placement trumps download sales.  Those are few and far in-between in this competitive market for synch’s.

5. What do you look for when you are signing artists?

First, the music has to be high quality.  It doesn’t matter what the genre is.  I have experts in all genres on my staff who can evaluate submissions.  However, good music, regardless of genre, is usually self-evident.  As important as the music is a good strategy.  We need the artist and label to commit to making their product a success.  This means developing and executing a marketing plan.  This doesn’t have to be anything complex or expensive.  All we are looking for is some form of creative and consistent activity.  Without having the proper ammunition, there is little that we can do to assist an artist or label to achieve the next level of success.

6. What would you say is the single most important thing independent artists can do to help grow their careers?

It’s actually two things.  First, gig and gig.  It is important to develop your local market as fully as possible.  These will be the fans that will spread the word.  Secondly, develop a plan.  With very few exceptions, albums without a release strategy and a well thought out plan, rarely succeed.  Take the time to figure out how you want to build momentum and fans.  It always pays off to do so.

7.   Today, everything is online and there is so much content from an infinite number of sites and platforms.  How can artist or band can make itself stand out when there is so much content from so many artists on every digital retailer/platform?

With up to 30 million tracks on some digital services, it is most definitely a crowded marketplace.  While there is no simple strategy for getting your music discovered more easily on the music stores, there is assuredly a very easy way to make your music harder to find.  That would be to just “set it and forget it” (as the infamous infomercial states).  It is more important than ever to develop an action plan to keep your fans engaged and interested.  This can be anything ranging from  a series of homemade videos, blog entries, to candid behind-the-scenes photos or videos. One email blast or tweet orFacebook post is simply not enough.  An artist needs to have a consistent and continuous stream of interactions with their fans to increase discoverability on these services.

 

Thanks to Steve for sharing his thoughts!  I’ll be sharing more interviews soon.

 

 

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